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District Court 14 September 2009

R v Drygan

[2009] NSWDC 249

Drugs
CRIMINAL LAW JUDGE ALONE TRIAL PARTICULAR OFFENCES OFFENCES AGAINST THE PERSON DRUG OFFENCES POSSESSION

Citation: R v Drygan [2009] NSWDC 249
Court: District Court of New South Wales
Date: 14 September 2009
Judge(s): Murrell SC DCJ

Background

The accused, a 62-year-old man of prior good character, was tried alone before a judge on a charge of supplying a prohibited drug, namely 9708.5 grams of cannabis leaf, at his rural Woollamia property on 10 September 2008. He had owned the approximately 10-acre property since the 1980s and lived there alone. Police executed a search warrant and found cannabis leaf spread across the residence, a caravan, a shed with a growing area, and an old bus concealed in dense undergrowth.

The accused pleaded guilty to separate charges of cultivating cannabis (from plants found in the shed and surrounding garden), possessing a firearm, and possessing ammunition and a crossbow. He contested only the supply charge. He conceded knowledge of the cannabis found in the house and caravan, but denied any knowledge of the large quantity found in the bus.

The trial proceeded under the "deemed supply" provisions of the Drug (Misuse and Trafficking) Act 1985. Because the total quantity exceeded the trafficable threshold for cannabis leaf (300g), the Crown did not need to prove an actual supply transaction. Instead, the onus shifted to the accused to prove on the balance of probabilities that he possessed the drug for a purpose other than supply.

  • Whether the Crown proved beyond reasonable doubt that the accused was in possession of the cannabis leaf found in the old bus, given his denial of any knowledge of it.
  • Whether the accused established on the balance of probabilities that he possessed the cannabis leaf found in the residence and the caravan for a purpose other than supply (the defence to a deemed supply charge).
  • Whether the accused's evidence of abandonment of the bus cannabis, and personal use of the other cannabis, was credible and sufficient to displace the deemed supply finding.

Decision

Possession of the bus cannabis. The court rejected the accused's evidence that he was unaware of the cannabis in the bus. Several circumstances led the court to conclude that the only rational inference was that the accused knew of, and intentionally exercised exclusive control over, that cannabis. Cannabis was found throughout the property; the accused resided there alone and had done so for many years; the bus, though in dense undergrowth, was on his land; and a person of his modest financial means was unlikely to abandon an asset worth thousands of dollars, even if it was of lower quality.

The defence to deemed supply. The accused argued the cannabis in the caravan was personal stock of poor quality that he intended to consume himself over time, and that the bus cannabis had been abandoned as rubbish. The court found him an unreliable witness and was far from satisfied, on the balance of probabilities, that his possession of the cannabis in the caravan (and part of the cannabis in the house) was for any purpose other than supply. Strong circumstantial evidence pointed to supply, even though the operation appeared unsophisticated and haphazard, with no clear evidence of a large-scale commercial business.

Other items. The court declined to draw adverse inferences from the vacuum sealing kit, the firearm, the crossbow, or a scanner found at the property. There was no evidence linking those items to drug supply activity, and the accused's explanations for possessing them were accepted or at least not displaced.

Verdict. The court returned a verdict of guilty in respect of part of the cannabis found in the house and all of the cannabis found in the caravan.

Orders Made

• Verdict of guilty returned in relation to part of the drug found in the house and the drug found in the caravan

Key Takeaways

  • Under the "deemed supply" provisions of the Drug (Misuse and Trafficking) Act 1985, once the Crown proves possession of at least the trafficable quantity of a prohibited drug, the burden shifts to the accused to prove on the balance of probabilities that the drug was not possessed for supply.
  • A claim of abandonment will not readily displace a finding of possession where the accused lived alone on the property, was aware of drug activity throughout that property, and the alleged "abandoned" items retained significant financial value relative to the accused's income.
  • The District Court confirmed that proving possession requires the Crown to establish that the accused actually knew of the substance and knew it was, or might well be, a prohibited drug; actual knowledge or belief is required, not what a reasonable person would have known.
  • Circumstantial evidence of possession for supply need not point to a sophisticated or large-scale commercial operation; the court found the charge established even where packaging was irregular and the overall operation appeared disorganised.
  • Prior good character remains a relevant consideration both to credibility and to the likelihood of guilt, but it will not be determinative where other evidence strongly points to the contrary conclusion.

Legislation and Cases Referenced

Legislation:
- Drug (Misuse and Trafficking) Act 1985 (NSW), s 25 (supply and deemed supply); s 43 (analyst's certificate)

Cases cited: No cases were cited in the text provided.