The Facts

The police established a strike force to investigate the illegal supply of drugs in northeastern NSW.

As part of the investigation, an audio surveillance device was installed in the home of a suspect.

The offender and the suspect had been friends for 15 years.

The offender was recorded visiting the suspect's home on a number of occasions while the surveillance device was operational.

The surveillance device captured the offender and suspect discussing drugs and exchanging packages and cash.

Several months later, the offender was arrested on the basis of the recordings.

The prosecution said that the offender had committed the offence of supplying prohibited drugs on an ongoing basis under section 25(1A) of the NSW Drug Misuse and Trafficking Act 1985 ("the Act"). This offence carries a penalty of up to 18 years' imprisonment with 2,400 penalty units and no standard non-parole period.

The offender argued for a lesser charge of supplying prohibited drugs under section 25(1) of the Act. This offence carries a penalty of up to 15 years' imprisonment, with 2,000 penalty units and no standard non-parole period.

case a - The case for the prosecution

case b - The case for the offender

  • On several occasions, the offender and suspect can be heard on the surveillance recordings discussing the sale and purchase of purple frogs. "Purple frogs" is a slang term for ecstasy.
  • The audio device captured the suspect handing over packages to the offender and the offender handing cash to the suspect to pay for the drugs.
  • The audio device recorded the fact that the offender took possession of a total of 350 pills that the prosecution asserted were for the purpose of supply. This amount of pills equates to approximately 70 grams in weight.
  • The suspect, who has already been sentenced to a two year jail term for dealing ecstasy, is able to provide witness testimony. He will confirm that the pills he sold to the offender were in fact ecstasy and that the quantity of pills was 350.
  • Based on the evidence, it is open to us to charge the offender under section 25(1A) of the Act with supplying prohibited drugs on an ongoing basis.
  • It is true that the suspect and I were recorded talking about "purple frogs", but we've been friends for 15 years and we talk a lot of rubbish.
  • The prosecution's surveillance recordings amount to circumstantial evidence that they want to use to infer that I broke the law.
  • The police have never found any drugs in my possession, so they are unable to provide direct evidence that there were any pills, let alone 350 pills. Nor can they prove that the pills, if they ever existed, were ecstasy, since there were no pills to analyse.
  • Although I deny having purchased any drugs from the suspect, I am concerned about the impact that the suspect's witness testimony might have on my case if I go to trial. So, I am prepared to plead guilty to the supply of a prohibited drug under section 25(1) of the Act. However, I will only do so if the quantity is taken to be 150 pills, and only if it is a one-off supply. This amount equates to approximately 30 grams in weight.
  • Also, if I plead guilty, my sentence should clearly be less than the two years that the suspect was sentenced to for dealing drugs.

So, which case won?

Cast your judgment below to find out

Peter Schmidt
Drug and alcohol offences
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.