What is the offence of deemed supply?

Under section 29 of the Drugs Misuse and Trafficking Act 1985 (NSW), a person is deemed to be supplying a prohibited drug when a traffickable quantity, or more, is found in his or her possession.

Police do not have to prove an intention to supply the prohibited drug. The accused person bears the onus of proof, on the balance of probabilities, that the drugs were not intended for supply.

Where the prohibited drug is prepared opium; heroin; a morphine derivative, or cannabis leaf, cannabis oil or cannabis resin; a person may prove that a medical practitioner authorised possession.

A list of prohibited drugs is found in Schedule 1 of the Act.

What is supply?

Section 3 of the Drug Misuse and Trafficking Act defines ‘supply’ as:

“Supply includes sell and distribute. It also includes agreeing to supply or offering to supply, keeping or having in possession for supply…”

This means that it is possible to be charged with a supply offence even where no drugs were actually dealt.

“Supply” does not include temporary possession of a prohibited drug with the intention of returning it to the owner of the drug: R v Carey (1990) 20 NSWLR 292.

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