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District Court 2 December 2008

R v MACPHEE

[2008] NSWDC 290

Drugs
CRIMINAL LAW PARTICULAR OFFENCES DRUG OFFENCES POSSESSION FOR SALE OR SUPPLY JUDGE ALONE TRIAL

Citation: R v MacPhee [2008] NSWDC 290
Court: District Court of New South Wales
Date: 2 December 2008
Judge(s): Murrell SC DCJ

Background

Police executed a search warrant on a house rented by the accused in October 2007. He had pleaded guilty separately to cultivating a commercial quantity of cannabis (56 plants) grown in a concealed room beneath the house. The trial by judge alone concerned a second charge: whether his possession of 354.7 grams of cannabis leaf constituted "deemed supply" under New South Wales drug law.

The cannabis leaf was found in two places. A tin in the kitchen cupboard held 19 grams, next to two bongs. A ziplock bag in a small laundry freezer held 335.7 grams. Because the total weight exceeded the trafficable quantity threshold of 300 grams for cannabis leaf, the Crown alleged deemed supply, meaning possession of that quantity is treated in law as possession for supply unless the accused can prove otherwise.

The accused elected a judge-alone trial, with the Director of Public Prosecutions consenting. He sought to persuade the court, on the balance of probabilities, that all of the cannabis was held for personal consumption only.

  • Whether the accused was in possession of the cannabis leaf found in the kitchen tin and laundry freezer.
  • Whether the cannabis leaf weighed more than 300 grams, the trafficable quantity triggering the deemed supply provision.
  • Whether the accused had established, on the balance of probabilities, that the cannabis was held for personal use rather than supply.

Decision

The court found the first two elements beyond reasonable doubt without difficulty. The accused occupied the main bedroom as the sole permanent resident, he acknowledged growing and storing the cannabis himself, and the analyst's certificate confirmed the total weight was 354.7 grams of cannabis leaf.

On the personal use defence, the court was prepared to accept on the balance of probabilities that the 19 grams in the kitchen tin was for personal use. Its small quantity and proximity to the bongs pointed to that conclusion. However, the court was far from satisfied that the 335.7 grams frozen in the laundry was held for personal use.

Several matters undermined the accused's account. The house contained an elaborate, purpose-built cultivation setup with specialised lighting costing $1,400, a drip system, and a drying area. Police also found digital scales, re-sealable bags, and a heat sealer in the dining room cabinet. The accused had no apparent legitimate income source during the relevant period, yet approximately $41,000 in cash was found in a hall stand. The court found the explanations offered for that cash to be implausible.

The accused's claimed personal consumption of 56 to 60 grams of cannabis per week, encompassing roughly 15 joints and several bongs daily, was characterised as prodigious and rejected. The fact that the laundry cannabis was stored as a single frozen block was held to be neutral, not inconsistent with an intention to supply in bulk or at a later time.

Orders Made

  • The accused was found guilty of count 2, deemed supply of cannabis leaf.

Key Takeaways

  • Under the deemed supply provisions of the Drug Misuse and Trafficking Act 1985, possession of cannabis leaf exceeding the trafficable quantity of 300 grams shifts the burden to the accused to prove personal use on the balance of probabilities.
  • The District Court assessed the personal use defence by reference to the totality of cannabis-related circumstances at the premises, not merely the quantity and packaging of the cannabis leaf in question.
  • Finding cash untethered to a credible legitimate source is a circumstance that courts may weigh against a personal use claim, particularly where other indicia of supply are also present.
  • The manner in which cannabis is stored, including freezing it in a single bag rather than dividing it, does not of itself support a personal use defence; the court treated such storage as neutral and not inconsistent with an intention to supply at a future time or in bulk.
  • Implausible evidence about income, cash holdings, and personal consumption levels can collectively undermine an accused's credibility on the key factual question of intended use.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), including the deemed supply and trafficable quantity provisions relating to cannabis leaf.

Cases cited: None cited in the provided text.