Drug Supply Law in NSW: Tough on Crime, Tough on Drug Dealers

The Drug Misuse and Trafficking Act 1985 (NSW) prohibits the manufacture, sale, supply, or trafficking of any prohibited drugs. The Act outlines the penalties for drug supply offences, including varying periods of imprisonment and fines, dependent upon the type and quantity of the prohibited drug. To prove the offence of supply prohibited drugs beyond reasonable doubt, the Prosecution must have evidence which establishes the certain essential elements, discussed in detail below.

The legal definition of supply is far wider than the ordinary understanding of the word and includes to sell or distribute, agreeing to supply, offering to supply, keeping or having in possession for supply, sending, forwarding, delivering or receiving for supply, authorising, directing, causing, suffering, permitting, or attempting any of those acts or things.

A person can also be charged with supply if they “take part” in the supply by:

1. Taking or participating in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply;
2. Providing or arranging finance for any such step in that process; and/or
3. Providing the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee, occupier, or in the management of which the person participates.
   
   

Another basis upon which a person can be found to supply is where a person has in their possession or control a certain quantity of a prohibited drug, called the “traffickable” quantity. In this circumstance, the onus shifts to the accused person to prove on the balance of probabilities that he or she had the prohibited drug in his or her possession for a reason other supply.

Where the prohibited drug is found in a premises other than the accused person’s premises, the Prosecution must prove that the accused has the legal right to exclude all persons from the premises in which the substance is located (other than those acting in concert with him or her). Proof of the belief that the drugs were present will suffice and possession does not require proof that the accused person knew precisely where the item was at the relevant time.

However, there are limits to the application of this principle, often referred to as “deemed” supply. For example, if the substance is located in a shared room of house, the Prosecution will have difficulty establishing that the accused person was in exclusive possession of it. Furthermore, it is necessary for the Prosecution to prove knowledge of the existence of the drug. In circumstances where the accused
person is but one resident of the house, and in the absence of any other facts which link him or her to the substance, it might be difficult for the Prosecution to prove the necessary element of control of the substance.

Schedule 1 to the Act lists all types of prohibited drugs (see table above). The Prosecution must provide an Analyst’s Expert Certificate from the NSW Forensic and Analytical Science Service (FASS) which confirms the substance seized from you was tested and is listed on Schedule 1 as a prohibited drug. The FASS Certificate must also list the weight and purity of the prohibited drug.

The authorities are clear: the accused must have knowledge that the substance is a prohibited drug of some form. A person charged with supply of a prohibited drug is guilty of that offence even if the drug actually supplied was different from the prohibited drug the offender believed the substance to be.

The Prosecution is obliged to note the specific amount alleged to have been supplied by the accused. Although it is not a separate offence, where the Prosecution alleges a large commercial quantity, for example, the Prosecution should as a matter of practice include such an allegation in the indictment and the jury should be required to give a verdict on that matter. Insert after this sentence: Furthermore, the Prosecution must prove that you had knowledge of the approximate amount alleged to have been supplied. This evidence can take many forms, including text messages, intercepted phone calls, covert footage, or even eye witness statements from undercover operatives.

It is essential to remember that being charged with drug supply does not automatically mean you are guilty. The team at Jackson John Defence Lawyers have extensive experience representing clients facing drug supply charges. We understand the nuances of drug supply laws and can provide you with
the best possible defence to fight the charges.

For example, if you were not aware that the substance you were supplying was illegal, or were holding the substance for another person, you may have a defence. Additionally, if the police conducted an illegal search or seizure, any evidence obtained may be inadmissible in court.

As part of our representation, will explore all possible defences and strategies to defend you against any charges. Don’t hesitate to contact the team at Jackson John Defence Lawyers today to discuss your case and start building a strong defence.