What the Prosecution Needs to Prove

To secure a conviction for a simple cannabis offence, the prosecution must prove:

1. Possession or use – That the accused had cannabis in their possession, used cannabis, or had cannabis-related equipment.
2. Knowledge – That the accused knew they possessed cannabis or a related item.
3. Quantity – That the amount of cannabis was within the limits for a simple cannabis offence.
4. Personal  use – That the cannabis was for personal use and not for sale or distribution.

If the amount possessed is greater than the limits for asimple offence, or there is evidence of intent to supply or sell, the chargemay escalate to a more serious drug offence.

The Relevant Court

Simple cannabis offences are usually not heard in court ifthe matter is dealt with via an Expiation Notice. However, if the expiation fee is not paid, or if the accused wishes to challenge the offence, the matter will be heard in the Magistrates Court of South Australia.

What Defences Are Available?

A person charged with a simple cannabis offence may have the following defences available:

1. Lack of possession – If the accused was unaware of the presence of the cannabis, they may argue they did not have possession.
2. Lack of knowledge – If the accused can prove they did not know the substance in their possession was cannabis, they may have a defence.
3. Incorrect procedure by police – If police did not follow the correct legal process, such as conducting an unlawful search, the evidence may be inadmissible.
4. Medical necessity – While South Australia has strict regulations around medical cannabis use, a valid prescription for medicinal cannabis may provide a defence.
5. Mistaken identity – If the accused was wrongly identified as the person in possession of the cannabis, they may argue mistaken identity.

It is crucial to seek legal advice to determine the bestdefence based on the facts of the case.

Penalties for Simple Cannabis Offences

The penalties for simple cannabis offences depend on thequantity and type of offence. If an Expiation Notice is issued, the offendercan pay the fine and avoid a criminal record. The current expiation fees underthe Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations2014 (SA) are:

Offence & Expiation Fee

Possession of less than 25 grams of cannabis: $250

Possession of between 25 and 100 grams of cannabis: $400

Possession of less than 5 grams of cannabis resin: $250

Possession of between 5 and 20 grams of cannabis resin: $400

Smoking or consuming cannabis in private: $250

Possession of cannabis-related equipment (pipes, bongs): $250

Possession of cannabis-related equipment (with other  offences): $130

Cultivating one cannabis plant (non-hydroponic): $400

If a person fails to pay the expiation fee within 28 days, an Expiation Reminder Notice will be issued, and additional fees may apply. If the fee remains unpaid, court proceedings may be initiated, and the offender could receive a conviction.

When a Simple Cannabis Offence May Lead to Court

While most simple cannabis offences are expiable, some situations may result in court proceedings instead of an expiation notice. These include:

• Smoking  cannabis in public places – This includes motor vehicles, public transport, hotel car parks, or any area classified as a public place.
• Growing cannabis hydroponically – Hydroponic cultivation is excluded from the expiation scheme and can lead to harsher penalties.
• Possession with commercial intent – If there is evidence that the cannabis was intended for sale or supply, the matter will be treated as a more serious drug trafficking offence, with much higher penalties.
• Failure to pay an expiation fee – If an offender does not pay the expiation fee within the required time, the matter can escalate to the Fines Enforcement and Recovery Unit or be heard in court.

Higher Penalties for More Serious Cannabis Offences

If a person is found cultivating more than one cannabis plant, or if there is evidence of sale or supply, they face higher penalties.

• 2-5 plants – Maximum penalty: $2,000 fine or 2 years imprisonment (or both).
• 6-9 plants – Maximum penalty: $2,000 fine or 2 years imprisonment.
• 10 or more plants – If deemed an aggravated offence, the penalty increases to $5,000 fine or 5 years imprisonment.

These penalties apply even if the plants are for personal use. It is not a defence to argue that the cannabis was for personal use if the quantity exceeds the legal limit.