In accordance with the Controlled Substances Act 1984 (SA) s 33, it is an offence to manufacture a drug of dependence intending to sell it or knowing another person intends to sell it [see s 33 for penalties relating to large commercial quantity, commercial quantity and trafficable quantity; Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1 pt 2 for the relevant prescribed amounts]. To “manufacture” means to take part in any process whereby the drug is extracted, produced or refined, and includes taking part in any process of manufacture of the substance [see Controlled Substances Act 1984 s 4(1)].
Section 33 and the definition of “manufacture” in section 4(1) came into operation on 3 December 2007, and apply to offences committed on and after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
A person takes part in the process of the manufacture of a controlled drug if the person directs, takes part in or participates in any step, or causes any step to be taken in the process of manufacture [see Controlled Substances Act 1984 (SA) s 4(4)]. A step in the process of the manufacture of a controlled drug includes:
Sections 4(4) and 4(6) came into effect on 3 December 2007, and apply to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
The manufacture of more than the prescribed amount for a trafficable offence is deemed to be for the purpose of sale or supply [see Controlled Substances Act 1984 s 33(4); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) sch 1 pt 2 for the relevant prescribed amounts]. The onus is on the accused, on the balance of probabilities, to establish that possession was not for the purpose of sale [see R v Nguyen (2010) 108 SASR 66; [2010] SASCFC 23 for an example].
Section 33(4) came into effect on 10 September 2009, and applies to any offences which occurred on or after that date [see Controlled Substances Act (Controlled Drugs, Precursors and Cannabis) Amendment Act 2008].
| POSSESSION FOR PERSONAL USE |
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| If a defendant’s instructions are that despite the amount, possession was not for the purposes of sale or supply, the prosecution should be approached and an attempt made to agree to the fact that in this case possession was for personal use. If this cannot be agreed, the matter will need to proceed to trial, where the onus of proof is on the accused person to establish that there was no commercial motive [see R v Kotz [2009] SADC 138 for an example]. |
In accordance with the Controlled Substances Act 1984 (SA), to “sell” has a broad meaning and includes selling, bartering, exchanging; any offers or agreements to sell, barter or exchange; or to expose for sale, barter or exchange [see s 4(1) for definition].
The definition of “sell” according to s 4(1) came into effect on 3 December 2007, and applies to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
A person takes part in the process of the sale of a controlled drug if the person directs, takes part in or participates in any step, or causes any step to be taken in the process of sale [see Controlled Substances Act 1984 (SA) s 4(4)]. A step in the process of the sale of a controlled drug includes:
Sections 4(4) and 4(5) came into effect on 3 December 2007, and apply to any offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].
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