Deemed Drug Supply

Section 29 of the Drug Misuse and Trafficking Act 1985 (“the Act”) creates a deeming provision, whereby if someone is in possession of more than a traffickable quantity of prohibited drugs, the person is “deemed” to have it in their possession for the purposes of supply. 

The practical impact of this is that if you have over a certain quantity of drugs in your possession, even if it is genuinely all for personal use, you can be charged with supply pursuant to section 25 of the Act, and the Police do not actually have to prove you were supplying it in order for you to be found guilty. 

Rebuttable presumption

This provision is a rebuttable presumption, which means that you can attempt to establish that you either:

1. Did not have the drug for the purposes of supply; or
2. that it was obtained in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.

The onus is on you to establish this, on the balance of probabilities. 

What Is The Traffickable Quantity?

Every prohibited drug has a different quantity which would amount to deemed supply. If the following amounts of a drug or more, you could be charged with “Deemed Supply”:

– 0.75 grams of MDMA (‘ecstasy’)

– 3 grams of amphetamines, cocaine or heroin

– 300 grams of cannabis

The maximum penalties for a drug supply charge vary depending on the quantity of the prohibited drug or plant and whether the matter is dealt with in the Local Court or on Indictment in the District or Supreme Court of New South Wales. You can see more information about Supply charges here (link to page). 

The Following May Constitute Deemed Supply:

• Having 0.75 grams of MDMA in your vehicle when stopped by Police.
• Having 400 grams of Cannabis in your handbag.
• Being caught with 10 MDMA “pills” at a festival. 
• Police finding 4, 1 gram bags of cocaine in your wallet. 

Common Questions about Supply Prohibited Drug and the Deemed Supply Provisions

Will I go to Gaol?

Offences of this nature will likely attract a term of imprisonment if the quantity of the drugs is significant. The exact quantity of the drug, a person’s record, the circumstances of the offence, their health and mental health and other factors which are considered in sentencing.

The Police have no evidence I was actually supplying drugs, does that matter?

Because of the deemed supply provisions in section 29, the Police do not need any evidence to prove that you were in fact supplying drugs. The fact that you have a certain amount in your possession is enough. It is then up to you to try to disprove it. 

What if I was temporarily holding the drugs for another person?

This is referred to as a Carey Defence from (R v Carey) where it was held that temporary holding does not constitute “supply” under the definition in the Act. You can successfully defend that charge if you can prove on balance of probabilities that the drug was in your possession only temporarily and with the sole intention of returning it to the rightful owner or another individual. A Carey defence still might mean you were in possession of the drugs though. 

What if the drugs were prescribed to me?

You may be able to defend a charge of Supply Prohibited drug if you are able to prove that the drugs were obtained by you with a valid prescription from a medical practitioner. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.