What Does the Prosecution Need to Prove?

To establish an offence under section 33J(1), the prosecution must prove beyond reasonable doubt that:

1. The accused intentionally engaged in manufacturing conduct. This includes personally manufacturing a drug or taking part in the manufacturing process.
2. The substance was a controlled drug. The substance must fall within the definition of a controlled drug under South Australian law.
3. The accused had the required knowledge or recklessness. The accused must have known, or been reckless as to whether, the substance was or would be a controlled drug.

The prosecution does not need to establish that the accused intended to sell the drugs, made any financial profit or completed a sale.

The prosecution also does not need to establish that the accused knew the precise identity or quantity of the controlled drug.

What Are the Maximum Penalties for Manufacturing a Controlled Drug?

Under section 33J(1), the maximum penalties are:

• Basic offence: $30,000 fine or 7 years' imprisonment, or both.
• Aggravated offence: $75,000 fine or 15 years' imprisonment, or both.
• Basic offence committed by a serious drug offender: $75,000 fine or 15 years' imprisonment, or both.

An aggravated offence can arise where the manufacturing conduct is connected with a criminal organisation in circumstances specified by the legislation.

A person may also face higher penalties where they meet the statutory definition of a serious drug offender because of qualifying previous convictions.

These are maximum penalties, not mandatory sentences. The sentence imposed will depend on the seriousness of the offending, the offender's role and their personal circumstances.

What is the Difference Between Manufacturing Drugs for Sale and Manufacturing Drugs Without Intention to Sell?

The distinction concerns the additional intention or belief required under section 33.

Manufacturing a Controlled Drug: Section 33J

The prosecution must establish that the accused intentionally manufactured a controlled drug. There is no requirement to prove an intention to sell.

For an ordinary basic offence, the maximum penalty is 7 years' imprisonment and/or a $30,000 fine.

Manufacturing a Controlled Drug for Sale: Section 33

The prosecution must establish that the accused manufactured a controlled drug intending to sell any of it, or believing that another person intended to sell any of it.

The maximum penalty for an ordinary basic offence under section 33(3) is 10 years' imprisonment and/or a $50,000 fine.

Where commercial or large commercial quantities are involved, the maximum penalties are substantially higher and can extend to life imprisonment.

It is therefore important to examine whether the prosecution can establish the additional elements required under section 33.

Can I Be Charged if I Manufactured Drugs Only for Personal Use?

Yes.

Manufacturing a controlled drug for personal consumption remains a criminal offence under section 33J.

The fact that a person did not intend to sell the drugs does not provide a defence to a properly established section 33J charge.

However, where a person has been charged with manufacturing for sale under section 33, evidence that the drugs were manufactured solely for personal consumption may be relevant to disputing the allegation of an intention or belief concerning sale.

This distinction can significantly affect the seriousness of the charges and potential penalties.

Can I Be Charged if the Manufacturing Process Was Never Completed?

Yes, potentially.

The statutory definition of manufacturing includes taking part in the manufacturing process.

This means a person may be charged even if the intended drug was not successfully produced.

For example, conduct involving the acquisition of manufacturing materials, transportation of equipment or participation in other manufacturing steps may fall within the statutory definition, depending on the evidence.

However, the prosecution must still establish that the accused intentionally engaged in conduct amounting to manufacturing.

Merely preparing to undertake an activity does not automatically establish every element of the offence.

Can I Be Charged for Possessing Chemicals or Equipment Used to Manufacture Drugs?

Yes.

Section 33J(2) creates a separate offence where a person possesses:

• A controlled precursor; or
• Prescribed equipment;

with the intention of using it to manufacture a controlled drug.

The maximum penalties are:

• Basic offence: $20,000 fine or 5 years' imprisonment, or both.
• Aggravated offence: $30,000 fine or 7 years' imprisonment, or both.
• Basic offence committed by a serious drug offender: $30,000 fine or 7 years' imprisonment, or both.

Possessing chemicals or equipment is not automatically an offence under section 33J(2), which requires proof of an intention to manufacture. However, possessing prescribed equipment, or a prescribed quantity of a controlled precursor, without a reasonable excuse is a separate offence under sections 33LA and 33LB, and the accused must prove the excuse.

The prosecution must establish the relevant possession and the intention to use the items to manufacture a controlled drug.

Can I Be Charged if Someone Else Was Manufacturing Drugs at My Property?

Potentially.

The legislation recognises that taking part in the manufacturing process can include providing or allowing premises to be used for that purpose.

However, merely owning, renting or living at a property where manufacturing occurs does not automatically make a person guilty.

The prosecution must prove the accused's relevant participation and the required state of mind.

For example, where drugs or equipment are located in a shared residence, the defence may challenge whether the accused knew about the manufacturing activity or intentionally participated in it.

What Defences Are Available to Manufacturing a Controlled Drug Charges?

The available defences depend on the circumstances of the case.

1. No Involvement in Manufacturing

The accused may deny participating in the manufacturing process or dispute the evidence connecting them to the alleged activity.

2. Lack of Knowledge

The accused may argue that they were unaware of the manufacturing activity or did not know, and were not reckless as to whether, the substance was a controlled drug.

3. The Conduct Does Not Amount to Manufacturing

The defence may dispute whether the accused's conduct falls within the statutory definition of manufacturing or taking part in the manufacturing process.

4. The Substance Was Not a Controlled Drug

The prosecution must establish that the relevant substance was a controlled drug. Forensic and scientific evidence may be challenged where appropriate.

5. Lawful Authority

Certain authorised activities are excluded from the operation of the relevant offences. Whether an exemption applies depends on the legislation and the circumstances.

6. Unlawfully Obtained Evidence

Where police have conducted an unlawful search or otherwise obtained evidence improperly, the defence may seek to have that evidence excluded where the law permits.

7. Duress

In appropriate circumstances, a person who participated in manufacturing because of serious threats or coercion may be able to rely on duress.

An experienced criminal lawyer can assess the evidence and advise which defences may be available.

Can I Be Charged with Manufacturing if Police Only Find Equipment and No Drugs?

Potentially.

If police locate prescribed equipment or controlled precursors and allege that the accused intended to use them to manufacture a controlled drug, a charge under section 33J(2) may arise. Charges under section 33LA or 33LB may also arise without proof of that intention.

However, the absence of a finished drug and the evidence concerning the intended use of the equipment may be important issues.

A criminal lawyer can assess whether the prosecution can establish the necessary elements of the particular charge.

Can My Property Be Confiscated if I Am Charged with Manufacturing Drugs?

Potentially.

The Criminal Assets Confiscation Act 2005 (SA) provides for the restraint and confiscation of certain property connected with criminal offending, subject to the statutory requirements.

Property that may be affected includes:

• Residential and investment properties;
• Bank accounts and cash;
• Vehicles;
• Manufacturing equipment; and
• Other valuable assets.

However, property is not automatically forfeited simply because a person has been charged with manufacturing a controlled drug.

Restraining and forfeiture proceedings can involve complex legal issues and may require separate legal advice.

What Should I Do if I Am Being Investigated for Manufacturing Drugs?

If police contact you in connection with suspected drug manufacturing, you should obtain legal advice before participating in a police interview.

You should also understand your rights and obligations, including your right to silence and any legal requirements to provide identifying information or comply with lawful police directions.

A criminal lawyer can assist by reviewing the allegations, advising you about the investigation and representing you if charges are laid.

Early advice can be particularly important where police have seized mobile phones, electronic records, chemicals, equipment or other material.