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District Court 29 January 2026

R v Brown

[2026] NSWDC 16

Drugs

Citation: R v Brown [2026] NSWDC 16
Court: District Court of New South Wales
Date: 29 January 2026
Judge(s): Montgomery DCJ

Background

The accused, whose identity is protected by a suppression and non-publication order, was tried before a judge sitting alone (without a jury) on a single count of supplying a large commercial quantity of a prohibited drug — specifically, 135.2 grams of psilocybin in the form of dried mushrooms.

The accused was detected at a police traffic stop at Potts Point on 29 July 2024. During a search of his vehicle, police located the mushrooms in a white plastic bag. The Crown did not allege any act of actual supply. Instead, it relied on the "deemed supply" provisions under the Drugs Misuse and Trafficking Act 1985 (NSW) ("DMT Act"), which provide that possession of a quantity at or above the trafficable quantity is deemed to be possession for supply unless the accused proves otherwise.

The accused's case was that he possessed the entire quantity for personal use — self-medication through microdosing for depression and anxiety — rather than for supply to others. He claimed to have harvested the mushrooms from the Royal Botanical Gardens, understanding that they only grew for six to eight weeks each year, and that his stock was intended to last approximately six to eight months. The central contested issue at trial was whether he had discharged his statutory burden of proving, on the balance of probabilities, that his possession was otherwise than for supply.

  • Whether the accused discharged his burden under s 29(1)(a) of the DMT Act of proving, on the balance of probabilities, that he possessed the prohibited drug otherwise than for supply.
  • How the accused's admitted lies to police during the vehicle search and subsequent interview should be used in assessing his credibility as a witness at trial.
  • Whether the circumstantial evidence — including the large quantity, communications with a person named Cashman, and the accused's untruthfulness to police — was sufficient to undermine the defence of personal use.

Decision

Montgomery DCJ carefully set out the legal framework. It was agreed that two elements of the offence were established: (1) the mushrooms constituted 135.2 grams of psilocybin, a prohibited drug; and (2) the accused was in possession of that quantity on 29 July 2024. The third element — that the possession was for the purpose of supply — was deemed by operation of s 29 of the DMT Act, given the quantity exceeded the trafficable quantity. The burden therefore fell on the accused to prove, on the balance of probabilities, that his possession was for a purpose other than supply.

Her Honour identified the accused's credibility as the pivotal question. The accused had admittedly and extensively lied to police — both at the scene and during his recorded interview at the police station. He fabricated explanations for photographs of mushrooms on his phone and denied harvesting them, only to concede in his oral evidence at trial that these were in fact the mushrooms found in his vehicle. Montgomery DCJ noted these lies were "flagrant and deliberate fabrication," and directed herself that they were relevant to the assessment of his credibility, though they could not be used as direct proof of guilt.

On the other hand, the court noted several matters favourable to the accused's account. His vehicle contained none of the paraphernalia typically associated with drug supply — no scales, no plastic bags of appropriate size for distributing bulky mushrooms. Even during his dishonest police interview, the accused made a spontaneous statement connecting his interest in psilocybin to his mental health treatment and referenced a program at Royal Prince Alfred Hospital. The medical evidence was substantial: the accused had been attending psychological counselling since August 2022 (37 sessions by the time of trial), was receiving treatment at the RPA drug clinic, and had attempted suicide twice in January 2024 by heroin overdose. Medical reports confirmed his severe depression and anxiety, which had developed following a violent crime committed against his teenage daughter in 2020.

The judgment text provided is truncated before the verdict is delivered. Based on the reasoning disclosed, Montgomery DCJ was carefully weighing whether the accused's oral evidence at trial — that the entire quantity was for personal microdosing — could be accepted as truthful despite his extensive prior dishonesty. Her Honour stated explicitly that if the accused's account was accepted, a not guilty verdict must follow; if it was not positively believed, the deemed supply provision would operate and a guilty verdict would result. Because the judgment text cuts off before the ultimate finding, the final verdict cannot be confirmed from the material available.

Orders Made

  • The suppression and non-publication order was confirmed.
  • The final verdict and any consequential orders are not available from the truncated judgment text provided.

Key Takeaways

  • Under s 29 of the DMT Act, the deemed supply provision places a real evidentiary burden on the accused. Where the quantity of a prohibited drug exceeds the trafficable quantity, the accused must affirmatively prove on the balance of probabilities that possession was for a non-supply purpose, a standard that requires more than merely raising a doubt.

  • Credibility was critical to the success of the s 29 defence. Montgomery DCJ emphasised that the accused's extensive lies to police, while not capable of proving guilt on their own, formed the "starting point" for assessing his trial evidence. Dishonesty during the investigative phase significantly undermined the personal-use defence at trial.

  • No supply paraphernalia was found, which supported the personal-use defence. The District Court gave weight to the fact that the vehicle search revealed no scales, no appropriately sized bags, and no other indicia of supply activity, treating this as a relevant factor in favour of the accused.

  • Medical evidence independently corroborated the accused's claims of self-medication. His documented psychiatric history, ongoing treatment, and suicide attempts provided support for the assertion that possession was for personal therapeutic use. The Court treated this robust medical and psychological evidence as a significant factor in the s 29 defence.

  • In judge-alone trials under s 133 of the Criminal Procedure Act, the presiding judge must articulate the principles of law applied and the findings of fact relied upon. The judgment demonstrated the structured approach required when sitting without a jury, including self-directing on warnings that would ordinarily be given to a jury (here, regarding the limited permissible use of lies to police).

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 133
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 29(1)(a)

Cases cited:
- None identified in the judgment metadata or available text.