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.
For commentary on the offence of knowingly take part in supplying a prohibited drug, see Knowingly take part in supply at [5-6755]ff below.
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).
Identity of the drug
The accused must know or believe the substance in their possession is a prohibited drug. It is not necessary to prove they knew the particular drug supplied. Both usages of “prohibited drug” in s 25(2) refer to the actual prohibited drug the accused has supplied or has knowingly taken part in the supply of and not to a prohibited drug that the accused mistakenly believed was involved: Salameh v R [2024] NSWCCA 239 at [14], [30], [126], [152]; Kural v The Queen (1987) 162 CLR 502 at 507, 512; Dunn v The Queen (1986) 32 A Crim R 203; Tabe v The Queen (2005) 225 CLR 418 at 424.
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.
The Crown must prove the accused knew that the quantity of the drug in fact in their possession is of the order of the quantity which the law identifies as a commercial quantity (or large commercial quantity) of the prohibited drug the subject of the charge. The accused need have no knowledge or belief as to the actual drug, nor as to the legal significance of the quantity: Salameh v R at [30], [126]. As set out later in the suggested direction at [5-6710], this requires that the Crown prove beyond reasonable doubt that the accused knew or believed at the time they supplied the drug that it was an amount which was not less than the [large] commercial quantity. Intent to supply a prohibited drug can be inferred where it is established the accused knew or believed or was aware of the likelihood, in the sense of there being a significant or real chance, that what was being supplied was a prohibited drug: Kural v The Queen (applied in the NSW drug supply context in Fung v R [2002] NSWCCA 479 at [36]); see also Smith v The Queen [2017] HCA 19 at [59].
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. It will have done so if it proves that they intentionally gave or provided the substance, 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.
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 they supplied the substance to the other person that it was a prohibited drug. The Crown does not have to prove they knew the drug was the particular one specified in the charge, but it does have to prove they 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.
[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. If you are satisfied the accused was aware there was a significant or real chance the substance was a prohibited drug it would be open to you to draw the inference that this element has been proved. 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.]
[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. 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 they 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 what the law prescribes as a [large] commercial quantity. It does have to prove that the accused knew or believed the quantity was … grams or more.
[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. If you are satisfied the accused was aware there was a significant or real chance the substance was a prohibited drug it would be open to you to draw the inference that this element has been proved.
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 themself had this knowledge or belief, at the time they 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 them 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] NSWCCA 225 at [14].
Where the only issue is whether the accused knew they had a [large] commercial or commercial quantity of drug in their 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.
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 their 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 they 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 them 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 they had custody or control of was a prohibited drug.
[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. If you are satisfied the accused was aware there was a significant or real chance the substance was a prohibited drug it would be open to you to draw the inference that this element has been proved. 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 their custody or control. However, I must stress that what you are concerned with is whether you are satisfied that the accused themself had this knowledge or belief that the substance was a prohibited drug.
[If appropriate: It is not necessary for the Crown to prove the accused knew the particular type of drug possessed for the purpose of supply; it is enough that they knew they were supplying 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 their 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 has in their possession a specified quantity or more of a prohibited drug, then they are 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 they had the drug in their 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 they had the drug in their possession for some purpose other than to give it, or provide it, to somebody else. The accused’s case is that they had the drug [specify defence case, for example, all the drug for their own use, or the Carey defence.]
While the onus of proving this rests on the accused, they do 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 they had the drug in their 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 their 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 they were 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 they knew or believed at the time of the possession that it was a prohibited drug. It is not necessary for the Crown to prove the accused knew the particular type of drug possessed for the purpose of supply; it is enough that they knew they were supplying 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 their 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 they 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 the accused knew what the law prescribes as a [large] commercial quantity. It does have to prove that the accused knew or believed that the quantity was … grams or more.
[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. If you are satisfied the accused was aware there was a significant or real chance the substance was a prohibited drug it would be open to you to draw the inference that this element has been proved. 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 themself had this knowledge or belief, at the time they supplied the drug, that it was in the order of 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”.]
[5-6755] Knowingly take part in supply
Section 6 DMTA defines to “take part in” for the purposes of the Act as relevantly being where a person takes, participates or causes any step in the process of supply; provides or arranges finance for such a step; or provides premises for, or suffers, or permits such a step being taken in the premises of which the person owns, leases, occupies, or participates in the management. For a discussion on what amounts to “suffers or permits” see Rabieh v R [2024] NSWCCA 154 at [8]–[10]. See also Criminal Practice and Procedure NSW at [10-s 6] and especially [10-s 6.15]; Criminal Law NSW at [DMTA.6.20].
Neither suffering nor permitting a step to be taken (s 6) can occur without a mental element. Whilst “suffering or permitting” involve similar concepts, the latter may involve more active involvement. One cannot permit an activity over which one has no control: Rabieh v R at [8]–[10].
Joint occupation of premises may be relevant to “suffering or permitting” a step to be taken (s 6) where there is evidence of opposition by one to the criminal conduct of another, or of lack of physical or persuasive capacity to resist the continuing criminal conduct of a spouse or close relation: Rabieh v R at [48]. Where the question is one of control, the circumstances of the case will be of critical importance, making it unlikely prior cases will provide useful guidance: Rabieh at [12]; R v Tao [1977] QB 141. There is no legal ruling that a joint tenant has no legal power to control activities of another tenant or prevent another tenant from inviting third persons onto, and conducting illegal activities on, the premises: Rabieh at [19]–[22], [49], discussing R v Lonie & Groom [1999] NSWCCA 319 at [97]–[98] and R v Sheen [2007] NSWCCA 45 at [21].
[5-6757] Suggested direction — knowingly take part in supply
The accused is charged with knowingly taking part in 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 knowingly took part in supplying 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.
-
Knowingly take part in supply
The first element the Crown must prove is that the accused knowingly took part in supplying a substance to another person. For the purposes of this case, it will have done so if it establishes that they 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.]
[Only direct on the form of “knowingly takes part in” on which the Crown relies]
“Knowingly takes part in” means a person intentionally takes a step in the process of supply; provides finance for a step in the process; or provides premises, or suffers or permits any step in that process in the premises of which the person is an owner, lessee or occupier.
Joint occupation of premises may be relevant to “suffering or permitting” a step to be taken where there is evidence of opposition by one to the criminal conduct of another, or of lack of physical or persuasive capacity to resist the continuing criminal conduct of a spouse or close relation.
- 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.
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 they knowingly took part in supplying the substance to the other person, that it was a prohibited drug. The Crown does not have to prove they knew the drug was the particular one specified in the charge, but it does have to prove they 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.
[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. If you are satisfied the accused was aware there was a significant or real chance the substance was a prohibited drug it would be open to you to draw the inference that this element has been proved. 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.]
[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.]
[5-6760] 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.
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in respect of each of the occasions you are satisfied occurred the accused received a financial or material reward.
- 1.
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The accused supplied a prohibited drug on three or more separate occasions
[The suggested direction for “actual supply” at [5-6710] should be used and adapted where necessary.]
The Crown is required to prove 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 they 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 of at least the same three occasions.]
- 2.
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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].
[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 themself received a financial or material reward. Here the Crown alleges that [refer to evidence].
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.
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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].