Citation: [2015] NSWDC 322
Court: District Court of New South Wales
Date: 22 May 2015
Judge: Judge S Norrish QC
Background
The accused was charged with supplying a prohibited drug, namely amphetamine, in a quantity of 97.4 grams at Broken Hill on 1 August 2013. That quantity substantially exceeded the traffickable quantity of three grams. He elected a trial by judge alone under the Criminal Procedure Act 1986.
Police executed a search warrant at the accused's home, where he lived with his partner and five children. They found the amphetamine locked inside a safe in a shed, along with electronic scales, eight glass pipes, multiple mobile phones, multiple SIM cards, cash, and a security camera system. The accused co-operated throughout the search and voluntarily attended the police station the next day for a recorded interview.
The accused did not contest possession. His entire defence rested on the statutory personal use defence under the Drug Misuse and Trafficking Act 1985: he claimed he had purchased the drugs solely to smoke himself and had no intention of supplying them to others.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused possessed amphetamine in an amount exceeding the traffickable quantity (not in dispute).
- Whether the accused established, on the balance of probabilities, that he possessed the amphetamine for a purpose other than supply, namely personal use.
- The proper approach to expert pharmacological evidence about whether amphetamine in salt form can effectively be smoked.
- The weight to be given to the surrounding circumstances (scales, cash, phones, SIM cards, security system) as indicia of supply.
Decision
Issue 1: Elements of the charge
The court found that all elements of the supply charge were established and not materially contested (at [100]). The analyst's certificate confirmed the substance was amphetamine with a purity of 38 percent and a total weight of 97.4 grams, far exceeding the three-gram traffickable quantity (at [27], [33]). The accused had voluntarily admitted possession during both the search and his recorded interview (at [60]).
Issue 2: The personal use defence
The accused bore the burden of proving on the balance of probabilities that the drugs were held for personal use rather than supply (at [34]-[36]). The court accepted that the accused was, at least from time to time, a smoker of drug substances, and found the presence of eight glass pipes consistent with that account (at [112]). However, the court was not satisfied the accused had discharged that burden.
Issue 3: Expert evidence on smoking amphetamine in salt form
The clinical pharmacologist opined that amphetamine sulphate in salt form cannot be smoked effectively, as it evaporates before producing smoke with a sufficient amphetamine content to create the drug's effect, though a placebo effect remains possible (at [96]-[99]). The court found this opinion ultimately a neutral factor. The pharmacologist conceded the substance could be ignited and smoked, and the accused's own interview statements suggested he experienced a "low quality high," which the court noted was potentially consistent with attempting to smoke the drug in that form (at [99], [113]).
Issue 4: Reconciling the accused's account with the evidence
The court identified a material inconsistency between the accused's claimed smoking frequency of 30 to 40 times per day and the fact that 97.4 grams remained approximately one month after purchase of roughly three ounces (at [121]-[122]). Even at less than a "point" (0.1 gram) per smoke, the arithmetic did not reconcile with the quantity retained. The court also noted that the accused's explanation for hiding drugs "in the bush" was difficult to reconcile with the drugs being found in total in the safe at the premises (at [125]). The surrounding circumstances, including the scales, multiple phones, SIM cards, cash stored in secured locations, and the security system, were indicia consistent with drug supply, and the court was not persuaded that the innocent explanations offered by the accused outweighed those inferences in combination (at [127]-[128]). The court found the accused guilty (at [129]).
Orders Made
- The accused was found guilty of the charge of supplying a prohibited drug (amphetamine) in an amount exceeding the traffickable quantity.
Key Takeaways
- Under the Drug Misuse and Trafficking Act 1985, once possession of a quantity exceeding the traffickable amount is established, the burden shifts to the accused to prove on the balance of probabilities that the drug was held for a purpose other than supply (at [34]-[36]); a claim of personal use must be established affirmatively, not merely raised as a possibility.
- The District Court treated pharmacological expert evidence about the smokability of salt-form amphetamine as a neutral rather than determinative factor, where the expert ultimately conceded the drug could be ignited and the accused's own account suggested some experienced effect (at [99], [113]).
- Arithmetic inconsistency between a claimed consumption rate and the quantity remaining at the time of arrest can weigh against a personal use defence, even where the accused did not give evidence at trial (at [121]-[122]).
- Surrounding circumstances such as multiple mobile phones, multiple SIM cards, electronic scales, secured cash, and a security system may collectively constitute indicia of drug supply, even where innocent explanations for each individual item are conceivable (at [118]-[128]).
- In a trial by judge alone under the Criminal Procedure Act 1986, the judge is required to expose the full reasoning process underlying findings of fact and the ultimate verdict, consistent with the High Court's approach in Fleming v R (1998) 197 CLR 250 (at [12]-[13]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Drug Misuse and Trafficking Act 1985
- Law Enforcement (Powers and Responsibilities) Act 2002
Cases
- Fleming v R (1998) 197 CLR 250