HOW COURTS DECIDE

How Courts Decide Drug Cases in NSW

Drug offences in NSW range from simple possession to large commercial supply. The critical issues are typically possession, knowledge, and—for supply charges—the application of deemed supply provisions based on quantity thresholds.

What the Prosecution Must Prove

Possess Prohibited Drug

Drug Misuse and Trafficking Act 1985 (NSW), s 10

The substance was a prohibited drug (identity must be proved by certificate of analysis)
The accused had possession of the drug (physical custody or control)
The accused knew, or ought reasonably to have known, the nature of the substance

Supply Prohibited Drug

Drug Misuse and Trafficking Act 1985 (NSW), s 25

The substance was a prohibited drug
The accused supplied the drug (includes sell, distribute, give, or agree to supply)
The accused knew the nature of the substance

Deemed Supply

Drug Misuse and Trafficking Act 1985 (NSW), s 29

Where a person is found in possession of a "traffickable quantity" of a prohibited drug, they are deemed to have possessed the drug for the purpose of supply unless they prove to the contrary.

Common Traffickable Quantities

Cocaine: 3.0 grams
MDMA: 0.75 grams
Methamphetamine: 3.0 grams
Cannabis leaf: 300 grams

The Deemed Supply Mechanism

How Deemed Supply Works

Once the prosecution proves possession of a traffickable quantity, the onus shifts to the accused to prove on the balance of probabilities that the drugs were not for supply. This is one of the few reverse onus provisions in NSW criminal law.

To displace the presumption, the defence must establish that the drugs were for personal use. Courts consider:

Supporting Personal Use

Drug dependency or history of personal use
No paraphernalia associated with supply
Quantity just over threshold ("bulk buy" argument)
No evidence of dealing activity

Suggesting Supply

Cash in dealer quantities
Scales, bags, or tick lists
Multiple phones
Drug-related text messages

Where These Cases Commonly Fail

Analysed through the CORE Defence Evidence Continuum™:

Stage 1: Collection

Unlawful search (no warrant, invalid search power)
LEPRA non-compliance (failure to state name and station)
Search warrant irregularities

Stage 2: Preservation

Chain of custody issues with seized drugs
Contamination or substitution possibilities
Insufficient sample for defence testing

Stage 6: Weight

Knowledge not established (drugs in shared premises or vehicle)
Exclusive possession not proved
Personal use defence displaces deemed supply presumption

Evidence Issues That Matter Most

Certificate of Analysis

Identity of the drug must be proved by a certificate of analysis from a qualified analyst. Defence may:

Require the analyst to attend for cross-examination
Challenge methodology or chain of custody
Request independent testing of retained sample

Knowledge and Possession

Where drugs are found in a location accessible to multiple people, the prosecution must prove the accused's knowledge and control:

Fingerprints - Are there fingerprints on packaging? Whose?
Location - Were drugs in an area under the accused's exclusive control?
Admissions - Did the accused claim ownership?
Other occupants - Could drugs belong to someone else?

Judicial Reasoning in Practice

For possession charges, the critical question is often knowledge. As noted in He Kaw Teh v The Queen (1985) 157 CLR 523, the prosecution must prove the accused knew or believed the substance was a prohibited drug. Mere proximity is insufficient.

For deemed supply matters, courts carefully assess whether the defence has discharged the onus of proving personal use. In R v Carey (1990) 20 NSWLR 292, the Court observed that evidence of the accused's drug use habits, financial circumstances, and the absence of indicia of supply are all relevant considerations.

Where search validity is challenged under s 138 of the Evidence Act 1995 (NSW), courts balance the seriousness of the impropriety against the desirability of admitting the evidence. Minor technical breaches may not result in exclusion; significant violations of rights often will.

Strategic Defence Considerations

Search Validity Analysis

Detailed examination of LEPRA compliance, warrant validity, and whether exclusionary discretion should be exercised.

Personal Use Evidence

Gathering evidence of drug dependency, use history, and purchasing patterns to displace deemed supply presumption.

Exclusive Possession

Examining whether possession can be attributed to the accused or whether others had access to the location.

Sentence Indication

Where guilt is clear, early plea with appropriate subjective material may avoid full-time custody.