Citation: R v Tamara Linda Terrens [2013] NSWDC 162
Court: District Court of New South Wales
Date: 28 August 2013
Judge: Judge A Haesler SC DCJ
Background
Police executed a search warrant on the accused's home in Jannali and found a large quantity of tablets in her bedroom. The tablets were distributed across multiple locations: in a black handbag on her bed, in a "coin" bag on her bed, and in a lockable compartment concealed inside a hollowed-out book styled as an encyclopaedia. Also found in the room were $1,165 in cash, three sets of scales, and two mobile phones.
Analysis confirmed the tablets contained 4-Bromo-2,5-dimethoxyphenethylamine (a prohibited drug), commonly known as 2C-B. The tablets in the handbag and coin bag weighed a combined 82.21 grams; the tablets in the concealed book weighed a combined 75.6 grams, bringing the total to over 157 grams across both caches. The large commercial quantity threshold for this drug is 100 grams; the commercial quantity threshold is 25 grams.
The accused was charged with supply of not less than the large commercial quantity (Count 1), with an alternative charge of supply of not less than the commercial quantity (Count 2). She pleaded not guilty to both and elected a judge-alone trial under the Criminal Procedure Act 1986.
Legal Issues
- Whether the accused was in possession of the tablets in both the handbag and the concealed book, or only some of them
- Whether the Crown proved beyond reasonable doubt that the accused knew (or was aware of a real and significant chance) that what she possessed was a prohibited drug
- Whether the Crown proved beyond reasonable doubt that the accused knew (or was aware of a real and significant chance) that the quantity in her possession was not less than the large commercial quantity
- Whether the deeming provision in s 29 of the Drug Misuse and Trafficking Act 1985 applied, and whether the accused rebutted it by establishing possession otherwise than for supply
Decision
Issue 1: Possession of all the tablets
The court was satisfied that the accused had physical possession and control of all the tablets found in her bedroom, including those in the concealed book. Despite the two caches containing different batches of the drug (distinguished by tablet insignia and purity levels), they were found in the same room over which she had exclusive control. The court drew the inference that she held all the tablets for the same purpose.
Issue 2: Knowledge that the substance was a prohibited drug
The court found the accused knew, or was at minimum aware of a real and significant chance, that the tablets were prohibited drugs. Her admitted experience as a drug user was a relevant circumstance. Combined with the quantity, the packaging, the scales, the cash, and the mobile phones found nearby, the court concluded this inference was the only rational one available.
Issue 3: Knowledge of the quantity
The court rejected the accused's explanations for possessing the drugs. It found that her personal use of all or most of the tablets was "fanciful," given the total of 555 tablets, the notation "300 lollies" written on one bag, and the existence of the locked concealed compartment. The court inferred she was sufficiently aware of the weight and nature of the total quantity to have the requisite knowledge that it exceeded the large commercial quantity threshold.
Issue 4: Supply and the s 29 deeming provision
The court found the tablets were held for supply, not personal use, noting that the quantity far exceeded any plausible personal use scenario. The accused did not discharge the evidential burden required to rebut the deeming provision. The most probable inference was that she was holding the drugs for onward supply, whether in bulk or for a third party, though the precise manner of intended supply was not determined.
Orders Made
- The accused Tamara Linda Terrens was found Guilty on Count 1: supply of a prohibited drug (4-Bromo-2,5-dimethoxyphenethylamine) in an amount not less than the large commercial quantity, at Jannali on 31 August 2012.
Key Takeaways
-
A conviction for supply of not less than the large commercial quantity of a prohibited drug requires the Crown to prove beyond reasonable doubt both that the accused knew the substance was a prohibited drug and that the accused knew (or was aware of a real and significant chance) that the quantity met the relevant threshold.
-
Where drugs are found in discrete packages across a single room under an accused's exclusive control, a court may find possession of all packages and infer a common purpose, even where batches differ in purity or marking.
-
The deeming provision in s 29 of the Drug Misuse and Trafficking Act 1985 treats possession of a traffickable quantity as possession for supply unless the accused proves otherwise; an accused's explanation for possession must have a genuine evidentiary basis to rebut that presumption.
-
In a judge-alone trial, the court must explicitly state the legal principles applied, summarise the parties' arguments, make findings of fact, and expose the reasoning linking those findings to the verdict, as required by the Criminal Procedure Act 1986 and confirmed by authority including AK v Western Australia.
-
The quantity of drugs actually proved to be in the accused's possession is critical to determining which charge is established; the District Court here carefully separated the two caches before considering their combined weight against the large commercial quantity threshold.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
- Evidence Act 1995 (NSW)
Cases
- AK v Western Australia [2008] HCA 8; 232 CLR 438
- Alliston v R [2011] NSWCCA 281
- R v Carey (1990) 20 NSWLR 292
- CTM v The Queen (2008) 236 CLR 440
- Fleming v The Queen (1998) 197 CLR 250
- R v Greatorex (1994) 74 A Crim R 496
- He Kaw The v The Queen (1985) 157 CLR 523
- Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
- Zoneff V The Queen (2000) 200 CLR 234