Supply of prohibited drugs

[5-6700] Introduction

Supply

As to the supply of a prohibited drug: see s 25 Drug Misuse and Trafficking Act 1985 (DMTA). “Supply” is defined in s 3 DMTA.

See generally, Criminal Practice and Procedure NSW at [10-s 3] and [10-s 25] and accompanying annotations; Criminal Law NSW at [DMTA.25A.40]ff.

Knowingly take part in supply

Section 6 DMTA defines the concept “knowingly take part in” conduct which amounts to an offence under the Act including the supply of a prohibited drug: see Criminal Practice and Procedure NSW at [10-s 6] and especially [10-s 6.15]; Criminal Law NSW at [DMTA.6.20].

Deeming provision

Section 29 DMTA contains a provision that deems possession of a drug to be for the purpose of supply where the amount of the drug is not less than the “traffickable quantity” specified for the particular drug the subject of the charge. Under the section, once possession of not less than a traffickable amount of a drug is proved beyond reasonable doubt, the accused has the onus of proving on the balance of probabilities that he or she had the drug otherwise than for supply.

See generally, Criminal Practice and Procedure NSW at [10-s 29] and annotations; Criminal Law NSW at [DMTA.29.20].

“Carey defence”

“Supply” does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug: see R v Carey (1990) 20 NSWLR 292. Alliston v R [2011] NSWCCA 281 discusses when the issue should be left to the jury. Alliston holds that Carey can apply to part of the drug in the possession of the accused, so that the “defence” may result in the accused being found not guilty of supplying a large commercial quantity or a commercial quantity but guilty of a lesser offence such as supply simpliciter. Alliston does not suggest that the deeming provision does not apply to all of the drug in a case of supply under s 25(1).

Amount of the drug

Alliston is also an example of a factual situation where it is necessary to emphasise to the jury that the Crown must prove beyond reasonable doubt, not only that the accused was in possession of a prohibited drug, but also the amount of that drug. That case concerned the quantity of the drug stated in the charge but it applies also to charges of supply based upon s 29. Unless the Crown proves beyond reasonable doubt that the accused was in possession of at least a traffickable quantity, the deeming provision under s 29 DMTA does not apply. This issue may arise where the drug is in more than one place or package as was the case in Alliston.

There are only three amounts that are relevant to a trial on indictment. The “large commercial quantity” and “commercial quantity” are relevant to the nature of the supply and are to be proved by the Crown as part of the charge. The “traffickable quantity” is an evidentiary provision that operates to place an onus on the accused.

The “small quantity” and “indictable quantity” are relevant only to jurisdiction of the Local Court.

The Crown can base its case of supply within the terms of any of the various forms of supply listed in s 3 including actual supply or possession for supply under s 29 or both.

Supply to minors

Section 25 DMTA contains a number of subsections involving offences of supplying by an adult (a person over the age of 18 years) to a minor (a person under the age of 16 years). In such cases, particular note should be taken of the alternative charge provisions which are differently worded: cf ss 25(2B) and (2E).

Ongoing supply

Section 25A DMTA creates an offence of supplying drugs on an ongoing basis. The offence does not apply to cannabis. The jury must be satisfied of the same three occasions of supply relied upon as the basis for the offence and given directions to this effect: see s 25A(3) and R v Seymour [2001] NSWCCA 272 at [11]–[12]. The word “supplies” in s 25A must be read in accordance with the extended definition of supply in s 3(1) of the Act: Nguyen v R [2018] NSWCCA 176 at [33]–[34], [37]; Younan v R [2018] NSWCCA 180 at [21], [23]–[24].

See generally, Criminal Practice and Procedure NSW at [10-s 25A.1]; Criminal Law NSW at [DMTA.25A.120].

Drug exhibits

Police procedures for drug exhibits are in Pt 3A of the Drug Misuse and Trafficking Act 1985 and Pt 3 of the Drug Misuse and Trafficking Regulation 2021.

The flow diagram explains the procedures, including any time limits. In short, these provisions provide that the quantity or mass of a substance must be recorded by an approved member of the NSW Police Force (or provided to an analyst for that purpose), as soon as practicable after coming into the custody of the NSW Police Force, and before any samples are taken for analysis. A certificate is then issued to the accused. Provision is also made for the retention and transportation of substances, evidentiary presumptions for chain of custody of drug exhibits and a Local Court review of the initial quantity or mass of a substance recorded on a certificate.

[5-6710] Suggested direction — actual supply

Note:: Because of the wide variety of possible bases of liability under the definition of supply in s 3 DMTA, the suggested direction is restricted to the ordinary meaning of the term, that is, “to give or provide”.

[The accused] is charged with supplying a prohibited drug namely [specify drug].

There are three elements of the offence the Crown must prove beyond reasonable doubt. They are:

1.: that [the accused] supplied a substance
2.: the substance was a prohibited drug, and
3.: [the accused] knew that what was supplied was a prohibited drug.

I will deal with each of these elements in turn.

1.

Supply

The first element the Crown must prove is that [the accused] supplied a substance to another person. For the purposes of this case, it will have done so if it establishes beyond reasonable doubt that [he/she] intentionally gave or provided the substance to somebody, whether by way of sale or otherwise. [Specify the allegation made by the Crown in the particular case.]

2.

Prohibited drug

The second element the Crown must prove is that the substance supplied was a prohibited drug. Here the Crown alleges that the substance supplied was [specify drug]. I direct you, as a matter of law, that if you accept the evidence relied on by the Crown that the substance is or includes [specify drug], then that substance is in law a prohibited drug. There is an Act of Parliament that contains a list of substances that are declared to be prohibited drugs for the purpose of this offence. [Specify drug] is one of the drugs listed in that Act.

It is not necessary that the Crown prove that the whole of the substance supplied consisted of that prohibited drug. The law is that anything that contains a prohibited drug in any proportion is to be treated as a prohibited drug. In other words, the purity of the prohibited drug is irrelevant.

[If in issue, canvass the evidence relating to these matters.]

[Where the substance is not a prohibited drug: see s 40 DMTA and substitute the suggested direction at [5-6720] below.]

3.

Knowledge

The third element the Crown must prove is that [the accused] knew or believed at the time [he/she] supplied the substance to the other person that it was a prohibited drug. The Crown does not have to prove [he/she] knew the drug was the particular one specified in the charge, but it does have to prove [he/she] knew or believed that the substance was a prohibited drug. The Crown may do so by showing [the accused] actually knew or believed that what was being supplied was a prohibited drug, or was aware that there was a significant or real chance that it was.

[Where appropriate, add

It is [the accused’s] actual knowledge or belief which must be proved by the Crown, and not simply what some person in [the accused’s] position may have known or believed. However, you may infer or conclude what a person knew or believed from considering all the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on mere speculation or suspicion. Because of the requirement that the Crown proves this element of the offence beyond reasonable doubt, any inference or conclusion you draw about [the accused’s] knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, you may consider as one of the circumstances to be taken into account what a reasonable person in the position of [the accused] would have known or believed as to the nature of the substance being supplied. However, I must stress that what you are concerned with is whether you are satisfied beyond reasonable doubt that [the accused] [himself/herself] had this knowledge or belief at the time of the supply.]

[Canvass evidence on the issue of knowledge etc and opposing submissions.]

[Substitute references to “growing plant” and “prohibited plant” for “substance” and “prohibited drug” if necessary.]

[5-6720] Suggested direction — where substance supplied is not a prohibited drug

Section 40 DMTA provides that, where the substance being supplied is not a prohibited drug but for the purposes of supply is represented as being a prohibited drug, the substance is deemed to be a prohibited drug for the purposes of the DMTA.

In such a case, the suggested directions set out in [5-6710] can be used except that in relation to the element of “prohibited drug” the following be substituted:

2.

Prohibited drug

The second element the Crown must prove beyond reasonable doubt is that the substance supplied was a prohibited drug. In this case, the evidence is that the substance was not in fact a prohibited drug. There is an Act of Parliament that contains a list of substances that are declared to be prohibited drugs for the purpose of this offence. The substance alleged to have been supplied by [the accused] is not contained in that list. However, the Crown relies upon a provision in the law that states that where a substance, which is not a prohibited drug, is, for the purpose of its being supplied, represented (whether verbally, in writing or by conduct) as being a prohibited drug, then it is to be regarded as being, a prohibited drug.

[Briefly refer to evidence and submissions on this aspect.]

[5-6730] Suggested direction — actual supply of commercial quantity

Section 25(2) DMTA provides for an offence of supplying not less than a commercial quantity of a prohibited drug. However, there is an increased penalty where the amount supplied is not less than a large commercial quantity. Although it is not a separate offence, if the Crown wishes to rely upon the penalty for a large commercial quantity this should be averred in the indictment. As to the quantities specified for particular drugs: see Sch 1 DMTA.

Where the charge alleges the supply was of a large commercial or commercial quantity, the suggested directions set out in [5-6710] are applicable but there should be directions added as to the element in respect of the quantity, whether it be the large commercial or the commercial quantity, as follows:

4.

[Large] commercial quantity

In this case, the Crown alleges that what was supplied was the [large] commercial quantity of the prohibited drug, so a fourth element the Crown must prove beyond reasonable doubt is that the amount of the drug supplied was not less than the quantity prescribed by the law for this particular drug as being the [large] commercial quantity. I direct you that for the drug [specified drug], the [large] commercial quantity prescribed by the law is [set out the prescribed quantity]. The Crown case is that what was supplied was [set out quantity alleged by Crown].

5.

Knowledge of [large] commercial quantity

The fifth and final element the Crown must prove is that [the accused] knew or believed at the time [he/she] supplied the drug that it was an amount which was not less than the [large] commercial quantity. The Crown does not have to prove [the accused] knew that the amount of the drug was [quantity alleged by Crown] but it does have to prove that [the accused] actually knew, or believed, that the drug being supplied was in an amount which was not less than [prescribed [large] commercial quantity], or that [the accused] was aware that there was a significant or real chance that it was.

[Where appropriate, add

As I said a moment ago about the Crown proving [the accused’s] knowledge that the substance supplied was a prohibited drug, it is [the accused’s] actual knowledge or belief which must be proved, not what some person in [the accused’s] position may have known or believed. However, knowledge or belief may be inferred or concluded from consideration of the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on speculation or suspicion.

Because of the requirement that the Crown proves this beyond reasonable doubt, any inference or conclusion that you draw about [the accused’s] knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, you may consider as one of the circumstances to be taken into account what a reasonable person in the position of [the accused] would have known or believed as to quantity of the substance being supplied.

However, as I have already said, what you are concerned with is whether you are satisfied beyond reasonable doubt that [the accused] [himself/herself] had this knowledge or belief, at the time [he/she] supplied the drug, that it was in an amount which was not less than the [large] commercial quantity.

[Canvass evidence on the issue of knowledge, etc and opposing submissions].]

If the Crown fails to prove these last two elements that are concerned with the quantity of the drug but proves beyond reasonable doubt the first three elements of the charge, then you are entitled to find that [the accused] is not guilty of the charge of supplying a [large] commercial quantity but find [him/her] guilty of the offence of simply supplying the prohibited drug. In that case, when the charge is read out to the foreperson for the purposes of taking your verdict, your foreperson will answer “not guilty of the charge of supplying a [large] commercial quantity but guilty of supply”.

[If appropriate on a charge of supplying a large commercial quantity the jury can bring in a verdict of one of two alternatives: “not guilty of supplying a large commercial quantity but guilty of supplying a commercial quantity” or “not guilty of supplying a large commercial quantity but guilty of supply”.]

[5-6740] Suggested direction — supply based upon s 29 DMTA — “deemed supply”

This suggested direction assumes that the Crown allegation is based upon possession for the purpose of supply and the application of s 29 DMTA.

In directing on “possession” there is no need for the suggested direction to refer to joint possession unless that is the allegation raised: R v Wan [2003] [2003] NSWCCA 225 at [14].

Where the only issue is whether the accused knew that he or she had a (large) commercial or commercial quantity of drug in his or her possession, there is no need for the judge to instruct the jury in detail on the deeming provision except to explain the nature of the “supply” being alleged and such a direction should be separate from that relating to knowledge of the quantity charged: R v Micalizzi [2004] NSWCCA 406.

[The accused] is charged with supplying a prohibited drug namely [specify drug]. Although the charge is one of supplying a prohibited drug, the Crown does not have to prove that [the accused] actually supplied that drug. I will explain how the law operates to bring about that result shortly.

There are three elements of the charge the Crown must prove and they must each be proved beyond reasonable doubt. They are:

1.: there was a substance which was a prohibited drug
2.: [the accused] possessed that substance
3.: [the accused] possessed that substance for the purposes of supply.

1.

Prohibited drug

The Crown must prove beyond reasonable doubt that the substance which it alleges that [the accused] supplied was a prohibited drug. Here the Crown alleges that the prohibited drug was [specify drug]. I direct you, as a matter of law, that if you accept the evidence relied on by the Crown that the substance which [the accused] is alleged to have supplied is or includes [specify drug], then that substance is in law a prohibited drug. There is an Act of Parliament that contains a list of substances that are declared to be prohibited drugs for the purpose of this offence. [Specify drug] is one of the drugs listed in that Act.

It is not necessary that the Crown prove that the whole of the substance consisted of that prohibited drug. The law is that anything that contains a prohibited drug in any proportion is sufficient. In other words, purity of the prohibited drug is irrelevant.

[If in issue, canvass the evidence relating to these matters.]

2.

Possession

Dealing next with the question of possession, the Crown must prove that [the accused] intentionally had the substance in [his/her] physical custody or control to the exclusion of any other person.

[Where the allegation is of joint possession, add

— except some other person acting jointly with [the accused] in possessing the substance.]

[Where the allegation is that the accused did not have physical possession of the substance

The Crown must prove that [the accused] intentionally had the substance in some place to which [he/she] had access and might go to obtain physical custody or control of it to the exclusion of any other person.]

[Where the allegation is of joint possession, add

— either alone or together with some other person acting jointly with [him/her] in possessing the substance.]

The Crown must also prove that in intentionally having such custody or control of the substance, [the accused] knew or believed at the time that the substance was a prohibited drug. The Crown does not have to prove that [the accused] knew that the drug was the particular one specified in the charge, but it does have to prove beyond reasonable doubt that [the accused] knew or believed that it was a prohibited drug. The Crown may do so by proving [the accused] actually knew or believed that what [he/she] had custody or control of was a prohibited drug, or was aware that there was a significant or real chance that it was.

[Where appropriate, add

It is [the accused’s] actual knowledge or belief which must be proved, not what some person in [the accused’s] position may have known or believed. However, knowledge or belief may be inferred or concluded from consideration of the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on speculation or suspicion. Because of the requirement that the Crown proves this beyond reasonable doubt, any inference or conclusion that you draw about [the accused’s] knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, you may consider as one of the circumstances to be taken into account what a reasonable person in the position of [the accused] would have known or believed as to the nature of the substance that the person had in [his/her] custody or control. However, I must stress that what you are concerned with is whether you are satisfied that [the accused] [himself/herself] had this knowledge or belief that the substance was a prohibited drug.

[Canvass evidence on the issue of knowledge, etc and opposing submissions.]]

If the Crown has not proved beyond reasonable doubt that [the accused] was in possession of the substance alleged to be a prohibited drug, then the Crown case has failed and [the accused] must be found not guilty of the charge.

3.

For the purpose of supply

The Crown must prove that [the accused] had the substance in [his/her] possession for the purpose of supply.

The charge is that [the accused] “supplied a prohibited drug” but that does not require proof that [the accused] actually supplied somebody with the drug. The ordinary meaning of the word “supply” is “to give or provide something to somebody”. But in this case, there is no evidence of [the accused] having given or provided anything to anybody. The Crown does not make that allegation against [the accused] and does not have to do so in order to prove the charge.

The law gives an extended meaning to the word “supply” beyond the normal, everyday meaning of the word. I direct you as a matter of law that, for the purposes of determining the offence before you, the word “supply” includes having a substance which is a prohibited drug for the purpose of giving it or providing it to another person. In other words, “supply” means having a prohibited drug in a person’s possession for the purpose of supply.

Here a particular rule of law comes into operation and must be applied by you. The law says that if an accused person has in [his/her] possession a specified quantity or more of a prohibited drug, then [he/she] is regarded as having possession of that drug for the purpose of supply it; that is, to give it or provide it to some other person. In relation to the particular drug here alleged to be [specify drug], the law specifies such a quantity as [state traffickable quantity].

So, if you are satisfied the Crown has proved beyond reasonable doubt that the substance was a prohibited drug; that [the accused] was in possession of it (and I remind you that proof of possession includes proof that [the accused] knew or believed at the time that it was a prohibited drug) and that the amount of the drug was at least [state traffickable quantity], then the Crown has proved all of the elements of the offence of supply and [if appropriate, subject to an exception I am just about to mention] you should return a verdict of guilty.

[Where accused relies on possession other than for supply, add

The exception is this. If you are satisfied that the Crown has proved beyond reasonable doubt each of these three elements, then it is a defence to this charge if [the accused] proves that [he/she] had the drug in [his/her] possession otherwise than for the purpose of supply.

[or if appropriate, obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner or etc.]

Supply here has its ordinary meaning, that is, to give or to provide the drug to somebody else, whether by way of sale or otherwise. So, what [the accused] needs to prove is that [he/she] had the drug in [his/her] possession for some purpose other than to give it, or provide it, to somebody else. [The accused’s] case is that [he/she] had the drug [specify defence case, for example, all the drug for [his/her] own use, or the Carey defence.]

While the onus of proving this rests on [the accused], [he/she] does not have to prove it to the high standard of proof beyond reasonable doubt: that is the standard of proof placed only on the Crown. It is sufficient if [the accused] proves this matter on the balance of probabilities. The “balance of probabilities” means more likely than not, or more probable than not. I remind you that the elements of the charge the Crown must prove must be proved beyond reasonable doubt: that is in effect that [the accused] was in possession of at least [the traffickable quantity] of the prohibited drug. However, if you are satisfied that the Crown has proved those facts to that standard, you then come to consider whether [the accused] has proved that [he/she] had the drug in [his/her] possession otherwise than for the purpose of supplying it, and the standard to which [the accused] is required to prove this fact is on the balance of probabilities.

If, having considered the relevant evidence and submissions in relation to the matter, you are of the view that it is more probable than not, or more likely than not, that [the accused] had the drug in [his/her] possession for a purpose other than for supplying it, then you must return a verdict of “not guilty”. If, on the other hand, you are not so satisfied, then you should find [the accused] guilty of the offence charged, provided always, of course, (as I have indicated) that you are satisfied, beyond reasonable doubt, as to the matters which the Crown must prove.

[Review evidence and submissions.]

To recap, the Crown is required to prove beyond reasonable doubt:

1.: that the substance with which the case is concerned was a prohibited drug, and
2.: that [the accused] was in possession of it, and
3.: that [the accused] supplied it in the sense that [he/she] was in possession of it for the purpose of supplying it. If you are satisfied of the first 2 of those 3 matters, and that the amount of the drug was [indicate traffickable quantity] or more, then the law is that [the accused’s] possession of the drug was for the purpose of supplying it.

I remind you that proof of [the accused] being in possession of the drug includes proof [he/she] knew or believed at the time of the possession that it was a prohibited drug.

If you are satisfied the Crown has proved these facts beyond reasonable doubt, then you should find [the accused] guilty unless [the accused] has proved on the balance of probabilities that [his/her] possession of the drug was for some purpose other than to supply it.

[5-6750] Suggested direction — supply of [large] commercial quantity based upon s 29 DMTA “deemed supply”

The suggested direction in [5-6740] is appropriate, but there should be a reference to two further elements the Crown must prove beyond reasonable doubt as follows:

4.

[Large] commercial quantity

In this case, in addition to the three elements to which I have already referred, the Crown must prove two additional matters beyond reasonable doubt. They are:

In this case, the Crown alleges that what was supplied was the [large] commercial quantity of the prohibited drug, so a fourth element the Crown must prove beyond reasonable doubt is that the amount of the drug supplied was not less than the quantity prescribed by the law for this particular drug as being the [large] commercial quantity. I direct you that for the drug [specify drug] the [large] commercial quantity prescribed by the law is [set out the prescribed quantity]. The Crown case is that what was supplied was [set out quantity alleged by Crown].

5.

Knowledge of [large] commercial quantity

The fifth and final element the Crown must prove is that [the accused] knew or believed at the time [he/she] supplied the drug that it was in an amount which was not less than the [large] commercial quantity. The Crown does not have to prove that [the accused] knew that the amount of the drug was [quantity alleged by Crown] but it does have to prove [the accused] actually knew, or believed, that the drug being supplied was in an amount which was not less than [prescribed [large] commercial quantity], or that [the accused] was aware that there was a significant or real chance that it was.

[Where appropriate, add

As I said a moment ago about the Crown proving [the accused’s] knowledge that the substance supplied was a prohibited drug, it is [the accused’s] actual knowledge or belief which must be proved, not what some person in [the accused’s] position may have known or believed. However, knowledge or belief may be inferred or concluded from consideration of the surrounding circumstances, provided any such inference or conclusion is a rational one and is not based on speculation or suspicion. Because of the requirement that the Crown proves this beyond reasonable doubt, any inference or conclusion that you draw about [the accused’s] knowledge or belief must be the only rational inference or conclusion open on the evidence. In this context, you may consider as one of the circumstances to be taken into account what a reasonable person in the position of [the accused] would have known or believed as to the quantity of the substance being supplied. However, as I have already said, what you are concerned with is whether you are satisfied beyond reasonable doubt that [the accused] [himself/herself] had this knowledge or belief, at the time [he/she] supplied the drug, that it was in an amount which was not less than the [large] commercial quantity.

[Canvass evidence on the issue of knowledge etc, and opposing submissions.]]

If the Crown fails to prove these last two elements concerned with the quantity of the drug over and above the traffickable quantity but proves beyond reasonable doubt the first three elements of the charge, then you are entitled to find [the accused] not guilty of the charge of supplying a [large] commercial quantity but guilty of the offence of simply supplying the prohibited drug. In that case, when the charge is read out to the foreperson for the purposes of taking your verdict your foreperson can answer “not guilty of the charge of supplying a (large) commercial quantity but guilty of supply”.

[If appropriate on a charge of supplying a large commercial quantity, the jury can bring in a verdict of one of two alternatives: “not guilty of supplying a large commercial quantity but guilty of supplying a commercial quantity” or “not guilty of supplying a large commercial quantity but guilty of supply”.]

[5-6760] Suggested direction — ongoing supply

Note: The following suggested direction is based on a case where there is evidence in the Crown case to prove the accused directly received a “financial or material reward” as a consequence of the supplies constituting the offence. However, “supplies” in s 25A must be read in accordance with the extended definition of supply in s 3(1): Nguyen v R [2018] NSWCCA 176 at [33]–[34]. See further the notes below.

[The accused] is charged with an offence of supplying a prohibited drug on three or more separate occasions during a period of 30 consecutive days for financial or material reward. The Crown must prove beyond reasonable doubt each of the following three elements:

1.: [the accused] supplied a prohibited drug on three or more separate occasions
2.: the occasions all occurred within a period of 30 consecutive days, and
3.: in respect of each of the occasions you are satisfied occurred [the accused] received a financial or material reward.

1.

The accused supplied a prohibited drug on three or more separate occasions

Let me start by telling you what the Crown is required to prove in order to establish an offence of supplying a prohibited drug.

[The suggested direction for “actual supply” at [5-6710] should be used and adapted where necessary.]

So, that is what the Crown is required to prove in order to establish an individual offence of supplying a prohibited drug. The Crown must prove beyond reasonable doubt that [the accused] supplied a prohibited drug on three or more separate occasions.

The Crown relies on the following occasions [briefly identify the separate occasions].

[Where the Crown alleges that the accused supplied different drugs

It is not necessary to prove [the accused] supplied the same prohibited drug on each occasion. Provided you are satisfied [he/she] supplied a prohibited drug, it does not matter what type of prohibited drug it was.]

[Where the Crown relies on more than three occasions

The Crown is therefore relying upon more than three occasions. It is necessary for the Crown to prove beyond reasonable doubt that [the accused] supplied a prohibited drug on at least three occasions. Before you can return a verdict of guilty you must be satisfied that at least three of them have been proved and you must be unanimous about this. In other words, you must all be satisfied as to the same three occasions.]

2.

The occasions all occurred within a period of 30 consecutive days

The second matter is that you must be satisfied beyond reasonable doubt that each of the occasions occurred during a period of 30 consecutive days. The first occasion relied upon by the Crown is alleged to have occurred on [date] and the last occasion relied on by the Crown is alleged to have occurred on [date]. If you are satisfied of this, then you should have no difficulty in being satisfied that each of the occasions occurred during a period of 30 consecutive days.

[Alternatively, if there is an issue about the 30 days, refer to the evidence and submissions.]

3.

The accused received a financial or material reward

The third matter the Crown must prove is that [the accused] supplied a prohibited drug on each occasion for financial or material reward. This means that in respect of each of the occasions you are satisfied occurred, you must be satisfied that [the accused] [himself/herself] received a financial or material reward. Here the Crown alleges that [refer to evidence].

To summarise, before you can return a verdict of guilty on this charge you must be satisfied the Crown has proved beyond reasonable doubt that:

1.

[the accused] supplied [a/any] prohibited drug on three or more occasions

[where appropriate, and you must each agree upon the same occasions in respect of at least three of them.]

2.

the occasions all occurred within a period of 30 consecutive days, and

3.

in respect of each of the occasions you are satisfied occurred that [the accused] received a financial or material reward.

If you are not satisfied that the Crown has proved each of these matters beyond reasonable doubt then you must return a verdict of not guilty. However, if you decide that this is the appropriate verdict in respect of this charge, but you are satisfied beyond reasonable doubt that [the accused] committed one or more individual acts of supplying a prohibited drug — whether or not within a period of 30 consecutive days and whether or not for financial or material reward — then while returning a verdict of not guilty of the charge you should also return a verdict, or verdicts, of guilty in respect of those individual supply prohibited drug offence(s). You should not take this as an invitation to compromise. Before you can return a verdict of either guilty or not guilty in respect of any offence you must all be satisfied beyond reasonable doubt that it is the correct verdict.

[Explain further how the verdict is to be announced by the foreperson just prior to conclusion of summing up.]

[5-6770] Notes

1.: The Crown does not have to prove the accused actually received a financial or material reward as a result of the particular supplies: Younan v R [2018] NSWCCA 180 at [10]. It is sufficient if an inference is available from the evidence that the purpose of the relevant supplies was for financial or material reward: Nguyen v R [2018] NSWCCA 176 at [37]–[38]; Younan v R at [27]. In Nguyen the argument on appeal was that an offence against s 25A should be confined to acts of actual supply because the extended definition of supply in s 3(1) was constrained by the words “for financial or material reward” in s 25A(1). The court rejected that argument (see at [40]). The relevant reasoning is at [33]–[39]. The court concluded that provided a purpose of an accused in supplying the drugs (in the extended sense) is to obtain a financial or material reward, then an offence against s 25A was committed (so long as the other elements were proved). This construction was endorsed in the subsequent decision of Younan (see at [10] and [21]–[24]). RA Hulme J in Younan also said the interpretation of s 25A in Nguyen was supported by the Second Reading Speech: at [25]–[26].