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Criminal Law Blog NSW

Court Finds Accused Guilty on 2 Drug Counts, Not Guilty on Another

Evidence established that the accused was guilty of “deemed” supply of two drugs but not guilty of a third accusation.

Busrakum Suwannagate was accused of four crimes, allegedly committed in Marrickville. She elected to have a trial and her case was decided by a judge of the District Court. The judge explained his decision in R v Suwannagate [2010] NSWDC 201. The case sheds light on the offence of “deemed” supply.

Charges

Suwannagate was charged with three counts of supply of a prohibited drug. The offences involved approximately 56 grams of MDMA (Ecstasy), 8 grams of cocaine, and 10 grams of amphetamine. The charges were based on section 29 of the Drug Misuse and Trafficking Act 1985, which provides that possession of a traffickable quantity of a prohibited drug is deemed to be for the purpose of supply unless the accused proves that the drug was possessed for some other reason (such as personal use).

Suwannagate was also charged with possession for an unlawful purpose of a counterfeit $100 Australian banknote. The “banknote” was tattered and damaged and was an obvious fake. The Crown eventually conceded that it had no evidence that Suwannagate possessed for an unlawful purpose. The court therefore found Suwuannagate “not guilty” of that offence.

Legal Requirements for Proof of Supply

To obtain a conviction under section 29, the prosecution must prove that the accused possessed a traffickable quantity of a drug. If the prosecution succeeds in proving that fact beyond a reasonable doubt, the burden shifts to the accused to prove that the drug was not possessed for the purpose of supply. “Supply” generally means selling or distributing to another person.

To prove the accused’s possession of the drug, the prosecution must establish that the accused had physical control or custody of the drug and knowledge that the drug was under her control. Control can be shared with other people, provided that others are excluded from taking custody of the drug. Proving that the accused had access to a drug is not necessarily sufficient to prove that the accused had custody or control of the drug.

Search of the Accused’s Car

Suwannagate was driving a car that she owned. The police stopped her car because she was driving erratically. Suwannagate appeared to be under the influence of a drug. She gave inconsistent accounts of where she was going.

The police searched the vehicle and found a chiller bag in the back seat. The drugs that formed the basis of the charges were found inside the bag. The police also found digital scales in the bag that are consistent with weighing drugs for supply. They also found glass pipes and butane lighters that were consistent with personal use of methamphetamine.

Also discovered in the search were several mobile telephones and a bag containing $7,500 in $50 notes. Suwannagate provided innocent explanations for her possession of those items and her testimony was corroborated by other witnesses. The judge did not rely on that evidence as proof of drug supply.

Other evidence

Suwannagate testified that she smoked methamphetamine in her residence, then went to the residence of her ex-boyfriend. They planned to travel to a “rave.” At her ex-boyfriend’s residence, she saw another man who had the chiller bag. She gave the man a ride and her ex-boyfriend drove separately. The man eventually got out of the car so that he could ride with Suwannagate’s ex-boyfriend. Suwannagate testified that he must have left the chiller bag in her car and that she was unaware of its presence until the police found it.

Court’s decision

While Suwannagate denied knowing that the chiller bag had been left in her car, the judge found that the denial was not credible. Rather, the evidence established that the drugs were being taken to the rave for supply to others. Suwannagate must have known that the drugs were in her car for that purpose. Whether she placed them in the car or someone else did so, Suwannagate could not have been ignorant of their presence in her vehicle at the time she was stopped.

The judge thought it was unlikely that the other man would have left the chiller bag in Suwannagate’s car (as she claimed) unless the man felt secure that Suwannagate knew of the bag’s presence and would safeguard and maintain control of its contents. Thus, the judge found beyond a reasonable doubt that Suwannagate knowingly possessed the bag.

There was no evidence that Suwannagate looked in the chiller bag but, based on her admission that she planned to use Ecstasy and amphetamines at the rave, as well as her knowledge that the man who had the chiller bag was bringing drugs to the rave, the judge found beyond a reasonable doubt that Suwannagate knew the bag contained Ecstasy and amphetamine. The judge therefore found Suwannagate guilty of “deemed” supply of those drugs.

While the judge thought it was likely that Suwannagate knew that the chiller bag contained cocaine, he did not accept that the charge was proved beyond a reasonable doubt given the absence of evidence that Suwannagate looked inside the bag or knew that cocaine would be distributed at the rave. He therefore found her “not guilty” of supply of cocaine.

Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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