Being charged with drug supply can be scary – but you may not have known that it is a defence if you were simply holding the drugs for another person.
One person who found herself in this position was 38 year old Tracey Anne Frazer.
R v Frazer (2002)
Police found Tracey Anne Frazer in possession of one capsule of methyl amphetamine while she was in the car with her boyfriend, Mr Rindfleish, driving from Lithgow to Sydney.
She claimed that her boyfriend had handed her the drugs when they stopped to buy petrol, and that she intended to return the capsule when he got back. But Ms Frazer fell asleep in the car, and forgot to return it.
The next thing she remembers is being woken up by Rindfleish, who said that the police were following them. Police pulled them over and searched the car. Frazer admitted that she was carrying a capsule in her trousers.
Police charged her with ‘drug supply’ on the basis that she intended to return the drugs to her boyfriend. At trial, Ms Frazer once again admitted to being in possession of drugs, but pleaded ‘not guilty’ to the supply charge.
During the trial, the jury asked the judge to outline the definition of supply; but the judge failed to outline the law when it comes to minding drugs for someone else. Despite Ms Frazer’s criminal defence barrister correctly advising the judge about the law, he failed to tell the jury that if they were satisfied that Ms Frazer was simply minding the drugs for her boyfriend, they must find her not guilty of drug supply.
Accordingly, Ms Frazer was convicted of the drug supply charge.
On appeal, the NSW Criminal Court of Appeal (NSWCCA) found that the trial judge’s failure to explain the law when it comes to holding drugs for someone else meant there was a potential miscarriage of justice.
The NSWCCA found that the trial judge should have said to the jury that:
“if they [the jury] accept on the balance of probabilities the evidence that Rindfleish gave her the [drugs] temporarily and if it was always intended that it would be given back at some point, then they should acquit.”
Ms Frazer’s conviction for drug supply was quashed on that basis, although she was still guilty of drug possession.
What is supply when it comes to drugs?
Supply is defined by Section 3 of the Drug Misuse and Trafficking Act as selling, distributing, agreeing to supply, offering to supply, keeping or having in possession to supply, forwarding, sending, delivering, or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of the above.
Although this is a very broad definition, courts have found time and again that holding drugs for someone else is not ‘possession for supply’. This is the case whether a person is holding one pill for someone else, or 10,000.
Where applicable, this rule is an extremely useful way to defend serious drug supply charges – some of which may carry a maximum penalty of life imprisonment – and to have the charges reduced to drug possession only – a far less serious charge which carries a maximum penalty of 2 years imprisonment.
There was evidence in the case of Frazer that she intended to pass the drugs to someone else, namely her boyfriend.
But did you know that you can be charged with drug supply even if there is no evidence at all that you intended to give, sell or return drugs to another person?
The law says that a person who is found in possession of more than the ‘trafficable quantity’ of drugs can be charged with ‘deemed supply’; even if there is no evidence of actual supply, or of any intention to supply.
The trafficable quantity of MDMA (ecstacy) is 0.75 grams, which can be as few as 2 or 3 tablets. The quantity for amphetamines, cocaine and heroin is 3 grams, and the quantity for cannabis is 300 grams.
If you are charged with deemed supply, you (or your lawyer) may be able to argue that you possessed the drugs for a purpose other than supply. Your lawyer may in fact be able to have your deemed supply charge dropped or thrown out of court for a range of reasons, including:
- That the drugs were for personal use only;
- That you did not have knowledge of the presence of the drugs;
- That you did not have ‘exclusive possession’ of the drugs because they were located in the common area, eg the living room or kitchen of a shared house; or
- That you were holding the drugs for someone else.
If you are facing drug charges in Sydney, it is important to speak to experienced criminal lawyers with the specialist knowledge to fight and win drug cases.