The Controlled Substances Act 1984 (SA) sets up a procedure in relation to simple possession offences to the effect that where such an offence has been committed, the matter is referred to a drug assessment service to determine whether the person requires an intervention to assist that person overcome any personal problems which led to the misuse of drugs. The assessment service is able to refer the person to education, preventative or rehabilitation programs [see also Specialist Courts chapter]. The person is compelled to comply with the recommendations of the drug assessment service through an undertaking to comply with the recommendations, and the threat of prosecution should they fail to comply.

Section 33L and relevant definitions under s 4(1) came into effect on 3 December 2007 and only apply to offences which occurred on or after that date [see Controlled Substances (Serious Drug Offences) Amendment Act 2005].

A simple possession offence is an offence against s 33L(1) other than an offence involving a prescribed controlled drug [see Controlled Substances Act 1984 s 4(1) for interpretation]. It is an offence to have possession of a controlled drug, or smoke, consume or administer a controlled drug to oneself, or permit another person to administer a controlled drug to oneself [see ss 33L(1)(a) and 33L(1)(b); s 4(1) for definition of controlled drug which includes a drug of dependence, and for definition of drug of dependence]. This offence does not include cannabis, cannabis resin or cannabis oil.

It is an offence to have possession of any piece of equipment for use in connection with the smoking, consumption or administration of a controlled drug, or the preparation of such a drug for smoking, consumption or administration [see Controlled Substances Act 1984 s 33L(1)(c)]. The maximum penalty is a fine of $2 000 or imprisonment for 2 years, or both [see s 33L(1)]. This offence does not include cannabis, cannabis resin or cannabis oil, or possession of a syringe or needle for use in connection with the administration of a controlled drug [see Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) reg 8].

Where a person is alleged to have committed a simple possession offence, the police officer must refer the person to an accredited Drug Assessment Service and give the person a notice that sets out the particulars of the place, date and time the person must attend that service [see Controlled Substances Act 1984 (SA) s 36(1); s 4(1) for definition of assessment service].

This procedure does not apply to a child who is alleged to have committed a simple possession offence [see Controlled Substances Act 1984 (SA) s 34; Youth Court chapter]. The referral to the assessment service operates as a stay of proceedings for the alleged offence [see Controlled Substances Act 1984 (SA) s 36(3)]. A copy of the referral is forwarded to the nominated assessment service which then requires the person to appear before an assessment panel [see s 36(2)]. Where that person is in custody, the prison manager must arrange for the person to be brought before the panel [see s 39].

The treatment and assessment service may require a person to appear before it and may interview or examine the person alleged to have committed the offence. The person may be required by the assessment panel to provide written consent for access to any medical and treatment records (including past drug treatment), and their criminal record [see Controlled Substances Act 1984 (SA) ss 37(2)(a)(i) and 37(2)(a)(ii)(B)]. The assessment panel may also require the person to submit to interviews or examination to determine whether the person is experiencing physical, psychological or social problems related to the misuse of drugs and, if so, to recommend appropriate treatment [see ss 37(2)(b) and 37(2)(c)]. The assessment service can require the person to submit to recommended treatment by way of an undertaking to submit to treatment.

Following assessment, the assessment service may require the person alleged to have committed the offence to enter into a written undertaking agreeing to the treatment they will undertake, participation in an education, preventative or rehabilitation program, and any other matters the assessment service deems necessary to assist the person to overcome any personal problems which led to the misuse of drugs [see Controlled Substances Act 1984 (SA) s 38(1)]. The undertaking must not exceed a period of six months [see ss 38(4); s 38(5) for varying terms of undertaking; s 38(6) for notification of variation to the Commissioner of Police].

Upon the entering of an undertaking, any complaint laid against the person for the alleged simple possession offence must be withdrawn. Where the person has been remanded into custody for the alleged simple possession offence (but not otherwise subject to detention) that person must be released from custody [see Controlled Substances Act 1984 (SA) ss 38(3)(b) and 38(3)(c)]. Where the person is subjected to bail conditions in relation to the alleged offence, the bail agreement must be discharged [see s 38(3)(c)].

Upon expiry of an undertaking, the person who entered into the undertaking is immune from prosecution for the alleged offence [see Controlled Substances Act 1984 (SA) s 40(4)]. The successful completion of the undertaking means that no further legal action can be taken.

Prosecution of a simple possession offence cannot commence unless the person has first been referred to an assessment service and the referral has been terminated by that service [see Controlled Substances Act 1984 (SA) s 40(1)]. Failure to successfully complete an undertaking will result in charges being laid in court. If the referral is terminated by the service, evidence of anything said or done by the person in the course of assessment, or whilst carrying out an undertaking, or the reasons for termination of service is not admissible in any proceedings against the person in relation to the alleged simple possession offence [see s 40(3)]. The fact that a person alleged to have committed a simple possession offence has participated in an assessment or entered into an undertaking does not constitute an admission of guilt, and may not be regarded as evidence tending to establish guilt in relation to the alleged offence [see s 40(2)].

Where a defendant is charged with a more serious offence, but is subsequently convicted for a simple possession offence, the sentence should equate with the penalty that might have been imposed had the defendant been referred to an assessment service [see R v McMillan (2002) 81 SASR 540 for an example].

Failure to cooperate with the assessment process and recommendations for intervention will result in the termination of the referral and the person will then be required to attend before the court. The referral to the assessment service may be terminated in writing, in person or by post. Relevant reasons for termination of a referral are:

A copy of the notice of the referral termination must be forwarded to the Commissioner of Police and include a summary of the reason(s) for termination of service [see Controlled Substances Act 1984 (SA) ss 37(5) and 37(4)].