Drug Misuse and Trafficking Act 1985 (NSW)

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 864-870; 873-875; 879-882.

Introduction

[1] The Drug Misuse and Trafficking Act 1985 (NSW) covers all prohibited drugs.

  • Schedule 1 to the Act specifies over 240 prohibited drugs or plants.
  • A prohibited drug refers to any preparation, admixture or other substance containing the drug.[2]
  • Little attempt to distinguish between different drugs in terms of the prohibited seriousness of their effects.
    • Only when it comes to the maximum penalties for the most serious offences (supply, cultivation and production) are cannabis plants and leaves treated with less severity.[3]

Prosecution of Drug Offences

[4] Drug prosecutions are overwhelmingly summary in nature.

  • Convictions in the Local Court:
    • s 10 (1) – possession of a prohibited drug.
      • Most common summary offence
      • Cannabis possession is the most numerous/commonly prosecuted.
    • s 12 (1) – use of a prohibited drug
  • Convictions in the District and Supreme Courts (ie, proceedings on indictment):
    • s 25 – supply of a prohibited drug (including deemed supply).
    • s 24 - manufacture of a prohibited drug.
    • s 23 – to do with the growing of the cannabis plant.

Note that statistics on drug offences/prosecutions reflects police activity rather than the true level of drug related activity in the community. This is because people rarely see themselves as the victims of drug-related activity, such as use and possession, and thus are unlikely to report such behaviour to the police etc.

Structure of the Act

[5] The Act is primarily divided into two types of offence:

  1. The possession or use of drugs, which are summary offences.
  2. The commercial supply of drugs, which is an indictable offence.
  • In addition, there are a range of other offences such as manufacturing/cultivating, possession equipment for the manufacture, etc.

Summary Offences

Note: Uni Study Guides has altered the text of the act to make it more simply to understand. A student should still follow the links to the actual sections and only use the actual words of the act when quoting.

Division 1 deals with summary offences. Some of the provisions are explained here:

  • s 10 - Possession of prohibited drugs.
    1. Possessing a drug is an offence. As for actus reus and mens rea:
      • Act: possessing a substance.
      • Circumstance: that the substance was a drug.
      • As per He Kaw Teh, a mental element is required for each of the above.
    2. Exceptions:
      • (a) the person licensed or authorised to have possession of the prohibited drug under the Poisons and Therapeutic Goods Act 1966 (NSW).
      • (b) the possession for the drugs is for scientific research in accordance with an authority granted by the Secretary of the Department of Health.
      • (b1) the person acting in accordance with a direction given by the Commissioner of Police under section 39RA.
      • (c) the drug was prescribed to the person.
      • (d) the person is either:
        • (i) assisting another person for whom the prohibited drug has been lawfully prescribed and
        • (ii) only possesses the drug for the sole purpose of administering the prohibited drug to the other person in accordance with the prescription.
  • s 12 - Use of prohibited drugs.
    1. Using or attempting to use drugs is an offence.
    2. Exception: use of a drug which has been prescribed.
  • s13 - Administration of prohibited drugs to others.
    1. administering a drug to someone else is an offence.
    2. exceptions:
      • (a) a person licensed or authorised to do so under the Poisons and Therapeutic Goods Act 1966.
      • (b) a person authorised to do so by the Secretary of the Department of Health.
    3. another exception: helping a person use a drug which has been prescribed.
  • s 14 - Permitting another to administer prohibited drugs.
    1. Letting another use a drug is an offence.
    2. Exception: where the person is using a drug which has been prescribed.
  • s 21 - Penalties.
    • The penalty for an offence under this Division is a fine of 20 penalty units or imprisonment for a term of 2 years, or both.

A penalty unit at the moment is $110. Other summary offences include:

  • s 11 - possession of equipment for administration. This excludes needles – designed to prevent the spread of contagious diseases such as AIDS.
  • s 11A - commercial supply/display of waterpipes (including bongs)

Note that there is no 'deemed' possession, only deemed supply.

Possession

[6] Possession of a prohibited drug is a summary offence (and also can make out the indictable offence of supply through s 29, where possession of quantities of prohibited drugs not less than the traffickable amount is deemed to the possession for the purpose of supply)

As indicated through He Kaw Teh, the necessary actus reus and mens rea requirements of possession can be holistically described as:

  • Actus reus: A degree of physical control of the item.
  • Mens rea: An intention to control the item (generally proved by awareness of its existence) respectively.

Physical Control

[7] The degreee of physical control was discussed in Filippetti:[8]

  • Facts: in a bust, there were a large number of people occupying the premises, and all used the lounge room where the drugs were found.
  • Held: it could not be concluded beyond reasonable doubt (not enough evidence) that the drugs were in exclusive physical control of the accused.
  • Ratio: to prove exclusive physical control the prosecution needs to eliminate the possibility that the drugs were in the possession of another.

And also in Dib, where the court ruled that[9]

  • For there to be physical control of a drug, the accused must have had the drug ‘in his manual possession or in a place to which he...may go without physical bar’.
    • This means that for premises, the accused has the legal right to exclude all others (except partners in crime) from the premises.
    • Premises include vehicles etc.
  • Where there are alleged joint possessors (eg married couple), it must be established that they all had that legal right.

As per Williams v Douglas,[10] physical control covers situations where the substance is placed such that the defendant can take it into physical custody when s/he wishes, and where others are unlikely to discover it except by accident.

Awareness of the Drug

[11] In He Kaw Teh, it was established that for possession in drug offences, it required knowledge of the ‘existence and nature, or of the likely existence and likely nature, or the narcotic goods in question’. As always, this needs to be proven beyond reasonable doubt.

However, the requirement of knowledge has been interpreted broadly, with Saad holding that awareness could be shown through:[12]

  • An awareness of a significant or real chance that the thing possessed was a narcotic substance (recklessness).

For example, the mental element of possession would be made out where a person has a container in which he or she is aware that there is likely to be a prohibited drug.

Minute Quantities

[13] The question arises whether a person can be convicted for possession even in the case of minute quantities (ie, fragments of drugs). This was discussed in Williams:[14]

  • Facts: fragments of cannabis leaves were found in the pockets of two coats owned by the accused, but the quantity was too small to extract any useful cannabis.
  • Held: when regarding possession, the Act had in mind ‘such quantity as makes it reasonable to say as a matter of common sense and reality that it is the prohibited plant or drug of which the person is presently in possession.’
    • This means greater than a minute quantity incapable of discernment by the naked eye (and only through scientific means).
    • ‘Useability test’ not used – difficulty in establishing what is a useable amount.

After He Kaw Teh, cases involving minute quantities can also be dismissed on the grounds that the accused did not have the required state of mind (thus bypassing the actus reus issue).

Indictable Offences

[15] These are the serious offences aimed at drug trafficking.

  • Generally, they are tried before judge and jury following committal proceedings by the magistrate.
  • However, where there are smaller quantities, they may be tried summarily by a magistrate, in which case the maximum penalties are lower.
  • Note: in general, the penalties for offences involving cannabis are lower than for those involving other prohibited drugs.

The offences are:

  • s 23 - Plants ( i.e. cannabis plant, different from cannabis leaf)
    • s 23 (1)(a) - cultivating or knowingly taking part in cultivation of a planet.
    • s 23 (1)(b) - Supplying or knowingly taking part in supply of a prohibited plant.
    • s 23 (1)(c) - Possessing a prohibited plant.
      • The penalty for these offences is 2,000 penalty units and/or imprisonment for a term of 15 years (if cannabis, 2,000 penalty units or imprisonment for 10 years).[16]
    • s 23 (2) (a-c) - Same as the above, just for commercial quantities.
    • s 23 (1A) - Higher penalties if done by ‘enhanced indoor means’ or for a ‘commercial purpose’ (even if there is no commercial quantity).
      • The penalty for these offences (both (2) and (1A) is 3,500 penalty units and/or imprisonment for 20 years (if cannabis, 3,500 penalty units or imprisonment and/or 15 years).[17]
  • Prohibited drugs (everything other than prohibited plants):
    • s 24 (1) and (2) - Manufacturing or producing prohibited drugs or knowingly taking part in these activities.
    • s 24A (1) - Possessing precursors with the intention to use them in the manufacture or production of a prohibited drug.
    • s 25 (1)-(2A) - Supplying or knowingly taking part in the supply of a prohibited drug
    • s 25A (1) - Supplying a prohibited drug on an ongoing basis (ie, 3 or more separate occasions in 30 days).

Supply Offences

[18] Drug trafficking offences require proof of supply to have occurred, in one of three ways:

  1. Supply as per the general common meaning of giving an item to someone who wants or needs it.
  2. Supply as per the extended meaning given in s 3 (1):
    • ‘Supply’ includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things.
    • sharing or giving away drugs is also supply.
  3. Deemed supply as per s 29, where possession of a traffickable quantity of a prohibited drug is deemed to amount to supply.
    • Note that traffickable quantities are different and specified in the Act for the relevant prohibited drugs/plants.

Deemed Supply

[19] Those possessing a traffickable quantity of a drug are presumed to be in possession for supply unless they can convince the court that they were In possession ‘otherwise than for supply’.[20]

  • This is a legal (not evidentiary) that must be proved by the accused on the balance of probabilities.[21]
  • Thus, upon the prosecution proving the accused was in possession (of a traffickable quantity), then the accused must discharge this legal burden.

There are different traffickable quantities for each drug/class of drugs, and these are laid down in Schedule 1 to the Drug Misuse and Trafficking Act.

  • Note that the ‘traffickable quantity’ of a prohibited drug can be an admixture viewed as a whole,[22] such that a pure quantity of a drug below the traffickable limit can become traffickable if cut with enough inert substances.

Table of relevant quantities -

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Issues with Deemed Supply

[23] In other areas of the criminal law, the actus reus of attempt is only made out where the accused has gone beyond mere acts of preparation.

  • However, with supply, the legal position is that the preparatory activity of possession with the intent to supply is regarded as itself amounting to supply.
  • In addition, the burden of negating intent is placed on the accused.

Protection is given to those innocents that are found with drugs in their custody through the principle set in He Kaw Teh, which requires knowledge and other mens rea elements. However, there has since been some watering down of those protections and support of more general principles by the High Court.

Deemed Drugs

[24] There is a deemed drug provision in s 40 of the Act, reinforcing the broad definition of supply:

  1. A substance which isn't actually a drug, but is being supplied on the representation that it is a drug, it considered a drug for the purposes of the act.
  2. The same applies for plants.

This prevents an accused who erroneously believes that they are supplying prohibited drugs from escaping liability. Also, a person who knowingly supplies a victim with a legal substance but tricks them into thinking it is a prohibited drug is to be labelled and punished as a drug supplier. This was discussed in the following cases:

  • Dendic:[25] although this area has to do with fraud, this area is still dealt with drug laws rather than fraud laws.
  • Swan:[26] The accused took money from an undercover police officer to buy cocaine, but never actually supplied the cocaine. He was arrested months later. Reaffirmed Dendic that drug-related fraud still operates under s 40 of deemed supply.

Ongoing Supply

[27] There is a provision for supplying prohibited drugs on an ongoing basis in s 25 of the Act:

  1. The ongoing supply offence is the supply of drugs (other than cannabis) on 3 or more separate occasions during a 30 day period for financial or material reward is.
    • Maximum penalty: 3,500 penalty units or imprisonment for 20 years, or both.
  2. It is not necessary for the drugs to be of the same nature (ie, ongoing supply of different drugs still qualifies).

This offence is particularly harsh as the size of the quantities involved on each occasion are irrelevant. The offence is most likely to be used against street dealers of heroin (goes against the ‘Mr Bigs’ concept).

  • While the maximum penalty is 20 years imprisonment, the average prison term given by the courts is about 3 years, suggesting the courts recognise most instances to be of similar criminality to simple supply offences.

Offences Involving Prohibited Plants

[28] Plants prohibited under s 23 of the Act are specified in s 3, and include the cannabis, coca, opium poppy, oriental poppy or Persian poppy plants.

  • It is an offence to cultivate, supply or possess these plants other than for authorised scientific research or as part of a police controlled operation.
  • Cultivate includes planting, nurturing and harvesting plants.[29]

Example include:

  • Eager:[30] watering seed in order to keep it alive until planted, with the intention of producing from it fully grown plants, amounts to cultivation.
  • Ruiz-Avila:[31] the storage of a crop may be seen as part of the harvesting process, based on the facts of the case.

Supply and possession have the same meaning as in other parts of the Act. In terms of mens rea for offences concerning prohibited plants, it appears that the prosecution only has to prove that the accused knew that a plant was involved.

Offences Involving Precursors

[32] Precursors are substances that may be used as ingredients in the manufacture of prohibited drugs.

  • There are over 60 prohibited precursors, listed in a Regulation.
  • Under s 24A it is an offence to be in possession of such precursors with intent to use the precursor in the manufacture of a prohibited drug.
  • Under s 24B it is an offence to be in possession, without lawful excuse, of amounts of quantities of such precursors over limits set out in the Regulations.

No intention to use the precursors to manufacture drugs needs to be proved, and the onus is on the accused to demonstrate a lawful purpose.

Penalties for Indictable Offences

[33] Maximum penalties for indictable offences depend on where the offence is tried and how much of the drug is involved.

  • s 30 - Small quantity (if tried summarily) - 2 years/50 units
  • s 31 - Indictable quantity (if tried summarily) - 2 years/100 units
  • s 32 - Less than commercial quantity - 15 years/2000 units.
    • If cannabis, 10 years/2000 units.
  • s 33 - Commercial quantity - 20 years/3500 units.
    • If cannabis, 15 years/3500 units.
  • s 33 (3) - Large commercial quantity - Life/5000 units
    • If cannabis, 20 years/5000 units.

Where less than commercial amounts of the drug/plant are involved, the offence can be dealt with summarily by the magistrate (unless the prosecution/accused opts for trial by indictment) and the maximum penalties are lower.

  • If there is a small quantity of cannabis resin, the case must be heard before a magistrate, unless prosecution opts for trial on indictment.
  • If there is more than small quantity but not more than the indictable quantity, it is to be dealt with summarily, unless either party decides for trial on indictment.
  • If the alleged offence is chosen not to be dealt with summarily, or the quantity is greater than the indictable quantity, then it must be tried on indictment.

Table of relevant quantities -

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, p. 862.
  2. Drug Misuse and Trafficking Act 1985 (NSW), s 4.
  3. Drug Misuse and Trafficking Act 1985 (NSW), ss 32-33.
  4. Textbook, pp. 862-4.
  5. Textbook, p. 864.
  6. Textbook, p. 865.
  7. Textbook, pp. 865-7.
  8. (1984) 13 A Crim R 335.
  9. (1991) 52 A Crim R 64.
  10. (1949) 78 CLR 521.
  11. Textbook, pp. 867-8.
  12. (1987) 70 ALR 667.
  13. Textbook, pp. 868-9.
  14. (1978) 140 CLR 591.
  15. Textbook, pp. 869-70.
  16. Drugs Misuse and Trafficking Act 1985 (NSW), s 32.
  17. Drugs Misuse and Trafficking Act 1985 (NSW), s 33.
  18. Textbook, p. 870.
  19. Textbook, p. 873.
  20. Drugs Misuse and Trafficking Act 1985 (NSW), s 29.
  21. Carey (1990) 20 NSWLR 292.
  22. Drugs Misuse and Trafficking Act 1985 (NSW), s 4.
  23. Textbook, pp. 873-4.
  24. Textbook, pp. 874-5.
  25. (1987) 34 A Crim R 40.
  26. (2003) 140 A Crim R 243.
  27. Textbook, p. 875.
  28. Textbook, p. 878.
  29. Drugs Misuse and Trafficking Act 1985 (NSW), s 3 (1).
  30. (1988) 38 A Crim R 272.
  31. (2003) 142 A Crim R 459.
  32. Textbook, pp. 879-80.
  33. Textbook, 880-2.
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