Last week two men were extradited from Dubai to Australia accused of importing tonnes of methamphetamine and MDMA worth hundred of millions of dollars into Australia in shipping containers.

Further disturbing details have recently emerged which link a major drug syndicate with Australian authorities.

According to a police statement of facts the investigation which involved the NSW police, Australian Federal Police and the NSW Crime Commission also revealed links between organised crime and the Australian Tax office.

It is alleged by NSW Police that a member of the international drug syndicate allegedly tried to launder money to the value of $150,000 via a compliance officer at the Australian Tax Office in Sydney.

Police allege that a member of the syndicate met the ATO employee at the front of his office with the cash, they were subsequently arrested by police officers before they entered the lifts inside of the building.

Last Thursday the men were represented by their respective criminal lawyers in Sydney Central Local Court.

They did not apply for bail and it was formally refused.

The offence of Supplying Drugs in New South Wales

In New South Wales it is an offence for a person to knowingly supply or take part in the supply of a prohibited drug: s 25(1) Drug Misuse and Trafficking Act 1985 (NSW).

In order to be prosecuted for an offence under this legislation, the prosecution must prove that:

  • The defendant supplied a substance,
  • Identify that the substance supplied was in fact a prohibited substance, and
  • Identify that the defendant retained knowledge that the substance being supplied was a prohibited substance.

What is Supply?

To supply is to:

".sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting, or attempting any of those acts or things": s 3(1).

If, however, the defendant demonstrates that the prohibited substance is temporarily in their possession they may evade a charge under this section.

In so demonstrating temporary possession, the defendant must demonstrate that they had an intention to returning the substance to the owner of the drug and that the relevant drug was never in "his or her possession for supply": R v Carey (1990) 20 NSWLR 292 and Alliston v R [2011] NSWCCA 281 at [19].

Prior to the application of the "Carey" defence, it has been held that:

"it is necessary for the party raising it to demonstrate that the evidence is capable of providing that the accused's possession of the drugs was merely momentary or transient and that the accused intended to return the drugs to their owner": Alliston at [28].

What is Deemed Supply?

Pursuant to s 29 of the Drug Misuse and Trafficking Act 1985 (NSW) :

"A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless ---

a) The person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

b) Except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner".

The practical effect of this provision is that it applies a rebuttable presumption that the accused person is in possession of the quantity of the drug for the purposes of supply.

If the prosecution prove that the defendant was in possession of the traffickable quantity of the relevant drug, then onus then shifts onto the defendant to demonstrate that the possession was for a purpose other than supply: Allison v R [2011] NSWCCA 281 at [6].

Should it be found that the prohibited substance was in the possession of the defendant otherwise than for the purpose of supply, it may be the case that this charge is downgraded to a lesser offence such as possession.

What is Possession?

The definition of "possession" is broadly construed by the judicial system.

In order to prove possession, the prosecution must demonstrate that the defendant retained exclusive possession of the prohibited drug either in the person's immediate physical custody or control, to the exclusion to all other persons.

Such possession is often established if the prohibited drug is located in the defendant's home, vehicle or on the defendant's person.

In addition to the exclusive availability of the prohibited substance, the defendant must knowingly have custody or physical control of the prohibited substance: He Kaw v The Queen (1985) 157 CLR 523 at [537-539] and [585]-[587].

Should the prohibited drug be located in the common area of a shared home or vehicle, it is apparent that the physical control and/or custody of the defendant to the exclusion of all other persons cannot be inferred: R v Fiipetti (1978) 13 A Crim R 335.

In the absence of exclusive possession, the prosecution may still establish that joint exclusive possession has been retained over the prohibited substance.

In so establishing joint exclusive possession, the prosecution will seek to demonstrate that the occupants of the shared accommodation or vehicle have continued to retain joint exclusive possession of the home or vehicle, and that that physical control or custody of the subsequent prohibited drug is shared amongst those occupants to the exclusion of other persons: R v Dib (1991) 52 A Crim 61 at [66]-[67].

Knowingly taking part in the supply of a prohibited drug

The second limb required to be demonstrated by the prosecution is that the defendant held knowledge that they were in fact supplying the prohibited substance to another person.

Section 6 of the Act defines "knowingly take part in supply" as follows:

  1. The person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply,
  2. The person provides or arranges finance for any such step in that process, or
  3. The person provides the premises in which any step in that process is taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates.

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.