Drug Offenses Exam Notes

Prohibited Drugs and Quantities

• First, determine if the substance is a prohibited drug.

  • Refer to the drug schedule of the DMTA (Drugs Misuse and Trafficking Act).

    • The DMTA outlines which substances are considered illegal under NSW law. It is crucial to consult the most current version of the Act, as schedules can be amended.

  • Section 3 contains the definitions, identifying where prohibited drugs are listed (Schedule 1).

    • Schedule 1 provides an exhaustive list of prohibited drugs, along with their chemical names and common street names. This list is crucial for identifying controlled substances.

  • Example drug: Three-four, methylene dioxymethylamphetamine (MDMA/ecstasy).

    • MDMA, commonly known as ecstasy, is a prohibited drug listed in Schedule 1 of the DMTA. Its chemical structure and various forms are detailed within the schedule.

• Next, determine the quantity of the drug.

  • Consider Section 4, the admixtures provision.

    • Section 4 addresses situations where the prohibited drug is mixed with other substances. This section is vital for determining the total weight to be considered.

  • In NSW, the total weight of the mixture is considered, regardless of the percentage of the prohibited drug.

    • This means that if a substance contains any detectable amount of a prohibited drug, the entire weight of the substance is treated as if it were entirely the prohibited drug. This can significantly increase the penalties associated with drug possession and supply.

    • Example: 900mg of a substance that is 50% MDMA is treated as 900mg of MDMA.

  • In Commonwealth offenses, the admixture provision does not exist, and only the actual weight of the prohibited drug would be considered (e.g., 450mg in the example above).

    • Commonwealth laws often focus on the pure weight of the prohibited substance, excluding any additional substances mixed with it.

• Determine if the quantity is above the trafficable amount.

  • For ecstasy (MDMA), the trafficable amount is 0.75 grams.

    • The trafficable amount varies by drug and is specified in the DMTA. Exceeding this amount triggers a presumption of supply.

  • Having above the trafficable amount leads to a deemed supply per Section 29.

    • Section 29 stipulates that possessing more than the trafficable quantity of a prohibited drug is considered intent to supply unless proven otherwise.

Possession

• Before considering supply, possession must be established.

• Relevant section: Section 10 of the DMTA.

  • Section 10 outlines the criteria for establishing possession of a prohibited drug.

• Elements of possession (from common law):

  • Physical element: Control or custody of the drug.

    • This requires the prosecution to prove that the accused had physical control over the substance.

    • Authority: Pillipette.

      • Pillipette is a key legal precedent that defines the threshold for physical control or custody in drug possession cases.

  • Fault element: Knowledge that the substance was in the person's possession and that the substance was an illicit drug.

    • The prosecution must demonstrate that the accused knew they possessed the substance and were aware it was an illegal drug.

    • Authority: He Kaw Teh.

      • He Kaw Teh established the requirement of proving the accused's knowledge that the substance was a prohibited drug.

• Application of facts is crucial in drug offenses.

• The prosecution must prove beyond a reasonable doubt that the accused:

  • Had control or custody of the drug.

  • Knew the drug was in their possession.

  • Knew the substance was an illicit drug.

• Knowledge can be difficult to prove.

  • Example: If the drug is in a wallet with a bulge, it could be argued the person knew something was there but not necessarily an illicit drug.

  • Reference to Ahren Lau: There needs to be some belief that there was a significant or real chance that it was prohibited.

    • Ahren Lau further clarifies the degree of knowledge required, suggesting there must be a reasonable belief that the substance is illegal.

  • Circumstantial evidence (e.g., environment, concert, being a uni student) may suggest knowledge but is not definitive proof.

    • While circumstantial evidence can contribute to the overall case, it is typically insufficient on its own to prove knowledge beyond a reasonable doubt.

Deemed Supply (Section 29)

• Section 29 stipulates that if the amount exceeds the trafficable amount, it is deemed to be for supply unless proven otherwise.

• Section 25 is essentially considered satisfied due to section 29.

Carrier Defence

• The carrier defense can be used to negate supply if possession is established.

• It argues that the accused was only carrying the drug to hand it in to authorities (e.g. security guard) without the intent to supply.

Personal Use vs. Supply

• Even if the drug is for personal use, if the amount is above the trafficable amount, supply is automatically deemed.

• Exceptions to deemed supply (Section 29):

  • If the person proves they possessed the drug otherwise than for supply.

    • The onus is on the defendant to prove they did not intend to supply the drug.

  • Balance of probabilities is the standard of proof required by the defense to negate supply.

    • They must demonstrate that it is more likely than not that they possessed the drug for a purpose other than supply.

Marijuana

• The trafficable amount for cannabis leaf is 300 grams.

• If the amount is less than the traffickable amount, Section 29 does not apply, and only possession needs to be established.

• Proving exclusive possession can be challenging, especially in shared living spaces.

Exclusive Possession

• Cases like Filipetti demonstrate the difficulty in proving exclusive possession in shared areas.

  • In Filipetti, drugs were found in a living room accessible to six people, leading to acquittal due to the inability to establish exclusive control.

• Amanatidis case highlights that if multiple people have access and opportunity, exclusive possession cannot be established beyond reasonable doubt.

  • In Amanatidis, both the father and daughter had access to the car where heroin was found, and both were heroin users, making it impossible to prove exclusive possession by one over the other.

• Amanatidis Quote (Paragraph 9):

  • "Possession of a thing in the criminal law involves physical control or custody of the thing plus knowledge that you have it in your control or custody. The physical control or custody may be shared but must be control or custody to the exclusion of other persons or persons other than those with whom it is shared."

Joint Possession

• Joint possession can be established if the drug is in an area accessible only to two people, and there is evidence of both having accessed it.

• Example: Fingerprint or DNA evidence.

• Case: Dib involved both husband and wife admitting to possession of heroin, leading to a charge of joint possession.

Factors Influencing Possession (Haines and Eburn):

• The place where the drug is found.

• The accused’s relationship to the place.

• The nature of the drug.

• The accused’s mental state about the presence of the drug.

Drug Offence Steps

1. Establish whether or not it is a prohibited drug (Schedule 1).

2. Identify the amount and relevant column (commercial, indictable, small quantity).

3. Address the admixture provision (Section 4).

4. Establish possession (Section 10).

5. If above the trafficable amount, Section 29 enlivens Section 25 (supply).

6. Consider the carrier defense (if applicable).

General Notes

• Defenses like self-defense, intoxication, mental illness, or automatism almost never arise in drug offense scenarios.

• Drug cases are very fact-specific, so engaging with the facts is essential.

• Important cases to know:

  • He Kaw Teh: Knowledge requirement.

  • Ahren Lau: Belief of a real chance that the substance can be a drug.

  • *Filipetti