Criminal Law Matters: Issue 3

‘Deemed supply’ is a tricky legal concept.

If you have over the trafficable amount of a drug (as per the schedule to the relevant legislation, the Drug Misuse and Trafficking Act) then it is ‘deemed’ that you have the drug for the purpose of supply.

The Prosecution must prove the substance is a drug; that you possess it and in this case the amount of the drug is enough to satisfy the tribunal of fact (e.g. Magistrate or Jury or Judge in judge alone trial) that you have the drug in your possession for supply.

There is a defence available.  However then the onus shifts to the Accused, which is rare in criminal law.

The Accused must prove on the balance of probabilities – the civil law standard – ‘more likely/probable than not’ – that he/she had the drugs in his/her possession for a reason other than supply. This reason is usually for ‘personal use’.

In this type of case the Accused will always give evidence. In order to succeed with the Defence the tribunal of fact must not reject the evidence of the Accused. The Court will look to any objective evidence that casts doubt on/undermines the version of the Accused.

Often this sort of evidence is indicia of actual supply such as tick lists, surveillance, ‘comings and goings’ from a premises, multiple mobile phones, small bags (‘baggies’), cash money.

It is important that the Court sees the total picture.  The Prosecution may try and focus on individual ‘bits’ of evidence to prove the person is supplying however often there are innocent explanations for possession of items – these explanations need to be clearly expressed to the Court.

  • I myself possess ‘baggies’.
  • I have cash on my premises.
  • I have multiple mobile phones.

However I can explain all these things; and I can assure the readers (if any!) that I am not in the business of drug supply.

The same sort of principles apply for manufacture of drugs.  I was assisting Mr Conditsis in a case once where there was alleged manufacture of drugs yet the items seized by police all had individual lawful uses.  The girlfriend of the accused was a beautician and one item was used to assist in nail work; there was another item used to clean the veranda/driveway; another substance was ingested by the client’s greyhounds. When examined carefully and as a whole it was clear that police had jumped to conclusions.

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