Barber v R

1. [1]

   THE COURT: The applicant, Adrian Hilary Barber, seeks leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against his conviction on one count of supply a commercial quantity of a prohibited drug, namely 1,105.2 grams of 1,4-butanediol (butanediol), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (DMTA).

2. [2]

   The sole ground of appeal sought to be raised by the applicant is that the verdict is unreasonable. Unlike the vast majority of such complaints, the applicant does not seek to attack the reliability of the evidence in proof of the case against him. He accepts that he was in possession of a commercial quantity of a prohibited drug. He does not seek to challenge the finding that he was in possession of at least some of that drug for the purposes of supply. His contention is that the evidence established he intended to use a substantial amount of the drug himself such that the court could not be satisfied he was guilty of supplying a commercial quantity of the drug.

3. [3]

   The argument raises a question as to the application of the “deeming provision” in s 29 of the DMTA. The applicant contends that s 29 did not operate to deem the entirety of the drug in the applicant’s possession to be for the purpose of supply, and, had the law been correctly applied, he would have been found guilty of the lesser offence of supply of a prohibited drug contrary to s 25(1) of the DMTA. That being the case, it is contended that the applicant’s conviction for supplying a commercial quantity of a drug is unreasonable. The applicant seeks not an outright acquittal, but rather a verdict of acquittal with a conviction for supply of a prohibited drug be entered in its place.

4. [4]

   The point has, at least, superficial appeal and we would grant leave. However, for the reasons set out below, the argument must fail and the appeal should be dismissed.

The procedural history

1. [5]

   On 21 June 2023, the applicant was committed for trial on an indictment charging him with five offences alleged to have occurred on 14 December 2022 at Kiama, contrary to the DMTA and the Weapons Prohibition Act 1998 (NSW). He pleaded guilty to the following three offences:

2. [6]

   In October 2023, the applicant was tried by judge alone before Baker SC DCJ on a fresh indictment charging him with the remaining two offences on the original indictment:

3. [7]

   On 19 October 2023, Baker SC DCJ found the applicant guilty of count 1 and not guilty of count 2.

4. [8]

   On 26 April 2024, the applicant was sentenced by his Honour on count 1, count 3 and count 4 on the first indictment, together with count 1 on the second indictment. The applicant received a discount of 10 percent for the offences to which he pleaded guilty, being count 1, count 3 and count 4 on the first indictment.

5. [9]

   The applicant was also sentenced with respect to five related charges, which were before the court pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). Of these, there were three charges of possession of a prohibited drug contrary to s 10(1) of the DMTA, one charge of possession of a prescribed restricted substance contrary to s 16(1) of the Poisons and Therapeutic Goods Act 1966 (NSW) and one charge of dealing with property suspected to be the proceeds of crime contrary to s 193C(2) of the Crimes Act 1900 (NSW).

6. [10]

   The applicant was sentenced to an aggregate term of imprisonment of 5 years and 7 months with a non-parole period of 3 years and 7 months, commencing 14 December 2022. The non-parole period will end on 13 July 2026 and the full term will expire on 13 July 2028.

The facts

1. [11]

   Butanediol is an industrial solvent. Despite this being the use for which it is manufactured, some people choose to drink it. Apparently, when metabolised, it has an effect similar to MDMA. As noted above, the applicant’s possession of a commercial quantity of the drug was not in dispute, nor that he was a member of that population who choose to drink it. The limited nature of the issue on the appeal is such that the facts can be dealt with briefly.

2. [12]

   At about 8:15am on 14 December 2022, the applicant, whilst driving his car, was pulled over by the police. He was the sole occupant of the vehicle. Both he and the car were searched. The police found, in the engine bay of the car, methylamphetamine (the subject of count 1 on the first indictment) and buprenorphine (the subject of a possess prohibited drug charge dealt with as a related charge). In the boot of the car police found a plunger syringe (which is apparently a means by which butanediol is administered) and two “ice pipes”. In a hidden compartment in the boot police found 96.5 grams of butanediol. Also in the applicant’s possession was the key to a safe.

3. [13]

   Police applied for, were granted, and executed a search warrant at the applicant’s property in Kiama. There, they further located various items including the items the subject of the remaining charges. In a safe in a wardrobe, which was opened with the key found on the applicant, police found a white bottle, a clear bottle and a green bottle, each of which contained butanediol. The combined weight of the drug in the three bottles was 1,008.7 grams. This, together with the 96.5 grams found in the car, made up the total quantity relied on by the Crown with respect to the commercial supply charge.

4. [14]

   In the applicant’s bedroom, police found a one-page document with numbers on it handwritten by the applicant. At trial, the applicant disputed the prosecution’s characterisation of this document as a “ledger” relating to the supply of butanediol. His case was that he was not involved in the supply of the drug. His evidence in this regard was rejected. While the trial judge did not accept that the applicant intended to consume the entirety of the drug, this did not amount to a rejection of evidence that the applicant was a heavy user of the drug and, as such, intended to use at least some of the drug himself.

Unreasonable verdict?

1. [15]

   The applicant contends that the verdict of the trial judge on count 1 is “unreasonable, or cannot be supported, having regard to the evidence” within the meaning of s 6(1) of the Criminal Appeal Act. The test to be applied in determining whether a verdict is unreasonable within the first limb of s 6(1) is that stated in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, per Mason CJ, Deane, Dawson and Toohey JJ. See, more recently, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 and The King v ZT [2025] HCA 9; (2025) 99 ALJR 676.

2. [16]

   In the present circumstances, it is unnecessary to recite the principles as developed in the above cases. That is because, as discussed above, the applicant’s argument is not that the evidence on which his conviction was founded was unreliable, but that the verdict was reached based on a misunderstanding of the law.

3. [17]

   It was not in dispute that the applicant was in possession of a prohibited drug, butanediol, in an amount that was not less than the commercial quantity applicable to that drug. The amount of butanediol in the applicant’s possession was 1,105.2 grams. The commercial quantity prescribed in relation to the drug, as provided in Sch 1 of the DMTA, is 1 kilogram, with the result that the applicant possessed 105.2 grams in excess of that amount.

4. [18]

   The offence of which the applicant was convicted is created by s 25(2) of the DMTA. Section 25 provides, as presently relevant:

5. [19]

   The penalty for the offence is provided by s 33, with different maximum penalties provided for offences involving commercial and large commercial quantities: see Salameh v R [2024] NSWCCA 239.

6. [20]

   The case against the applicant was based on the extended definition of supply in s 3 of the DMTA:

7. [21]

   In the case against the applicant it was alleged, relying on the above extended definition, that he was in possession of the butanediol for the purposes of supply. The DMTA facilitates proof of an offence of being in possession for the purposes of supply by means of the “deeming” provision in s 29 of the DMTA: see Alliston v R [2011] NSWCCA 281; (2011) 217 A Crim R 323 at [6]. A person in possession of an amount of a prohibited drug in excess of the “traffickable” quantity applying to that drug is deemed, subject to stipulated exceptions, to possess the drug for the purposes of supply. While an argument was raised on the appeal questioning whether s 29 was in fact relied on, we will proceed, in the first instance, on the assumption that s 29 applied. The traffickable quantity applicable to butanediol, as set out in Sch 1 of the DMTA, is 30 grams, with the result that the applicant possessed an amount (well) in excess of the traffickable quantity. Section 29 provides:

8. [22]

   As can be seen, s 29(b) has no application to the present case. The applicant was thus deemed to have been in possession of the drug for the purposes of supply unless he proved that he had “the prohibited drug in his possession otherwise than for supply”. The applicant’s onus was to prove that fact on the balance of probabilities: Evidence Act 1995 (NSW), s 141(2); R v Carey (1990) 20 NSWLR 292 at 294; (1990) 50 A Crim R 163; McEwen v R (1998) 99 A Crim R 421.

9. [23]

   The drugs in the applicant’s possession were in four different containers. One bottle was found in the applicant’s car (weighing 96.5 grams) and three bottles in his wardrobe (weighing 1,008.7 grams). The case against him was, however, prosecuted as if it was a single quantity of the drug, that being the combined total of the four bottles.

10. [24]

    It might be noted that the combined weight of the three bottles in the wardrobe was sufficient to sustain a charge of commercial supply in the absence of the bottle found in the car. Thus, while the applicant gave a different explanation at trial for the smaller quantity of butanediol found in the car, acceptance of that explanation would not have reduced the amount in the applicant’s possession to an amount less than the commercial quantity. These were not, in any event, distinctions made at trial. Nor was any issue raised as to duplicity or that the applicant was otherwise embarrassed in his defence by the inclusion in the one charge the four different bottles containing butanediol: see generally Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; S v The Queen (1989) 168 CLR 266; [1989] HCA 66; Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28; Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204; Kiangatha Holdings Pty Ltd v Water NSW [2020] NSWCCA 263; (2020) 247 LGERA 1. See also Chapman v R [2013] NSWCCA 91; (2013) 232 A Crim R 500 for a discussion in the context of the possession of distinct parcels of drugs found in different locations.

11. [25]

    The Crown contended at trial that the applicant intended to supply at least some part of the drug in his possession. The trial proceeded on the basis that if the Crown established this the applicant should be convicted. The applicant, in order to avoid this result, contended that the entirety of the drug was for his personal use.

12. [26]

    The argument on this appeal is that the trial proceeded on a false premise. In short, it is now argued on behalf of the applicant that the prosecution was required to prove that the applicant intended to supply a commercial quantity of the drug. As observed above, there was evidence that the applicant was a heavy user of butanediol. The applicant’s contention is that he intended to use a sufficient part of the drug, such that the remainder would have been less than the commercial quantity, thus precluding his guilt of commercial supply. We are prepared to accept for the purposes of the applicant’s argument that, had the DMTA been construed in the manner the applicant now contends it should have been, it would not have been possible to be satisfied beyond reasonable doubt that the applicant intended to supply a commercial quantity of the drug.

13. [27]

    The applicant’s argument, however, must fail. To understand why, it is necessary to attend to the terms of s 29(a) of the DMTA. Section 29(a) operates when a person has in possession “an amount of a prohibited drug” which is in excess of the relevant threshold. On this being established, the person is deemed to possess “the prohibited drug” for the purposes of supply. The definite article “the” in this context refers to the entirety of the prohibited drug in the person’s possession. The requirement in s 29(a) that the person prove they had possession of “the” prohibited drug for a purpose other than supply is again a reference to the drug as a single quantity. A failure to prove “the” (whole single quantity) of the drug was in the person’s possession for a purpose other than supply has the result that s 29(a) is not satisfied. The whole of the drug is thus deemed to be in the person’s possession for supply.

14. [28]

    The importance of the definite article in the context of the expression “the prohibited drug” was emphasised in Salameh. The context was the construction of s 25(2) of the DMTA and in particular whether the accused’s intention to supply a commercial quantity of a prohibited drug was established by proof the accused intended to supply a quantity of the drug in excess of the commercial quantity applicable to the drug actually supplied, or whether it was necessary for the Crown to prove an intention to supply a quantity in excess of the commercial quantity of the prohibited drug which the accused believed they were supplying. Bell CJ, Payne and Sweeney JJ said (at [6]):

15. [29]

    The reasoning, while not directly applicable, is not dissimilar to the reasoning that applies in the present case.

16. [30]

    Rejection of the applicant’s argument also follows from a proper understanding of the nature of the offence. There is no separate offence of “deemed supply”. The offence is one of supply (be it supply simpliciter, commercial supply or some other variant provided by the DMTA). When based on the extended definition, an offence of “supply” can be established by proving, amongst other alternatives, the person was in possession of the drug for the purpose of supply (possibly relying on the deeming provision to do so). The mental element to be established relates to the intention with which, and at the time, the drug is possessed. It does not relate to what the person has done in the past with drugs that were previously in their possession (though evidence of prior conduct may be relevant to proof of the present intention). Nor is the mental element proved by speculation as to what the person “would” have done with the drugs in the future.

17. [31]

    In the present case, as discussed above, in the absence of any capacity to distinguish between different quantities of the drug, it became, in effect, an indivisible whole. As such, and understanding the intention to be proved as discussed above, it was not possible to point to any part of the substance and be positively satisfied on the balance of probabilities that it was possessed by the applicant for a purpose other than for supply. Thus, the whole quantity was deemed to be in the applicant’s possession for the purpose of supply. In other words, proof of an intention to use some part of the drug possessed is not inconsistent with a failure to prove that the whole of the drug was possessed other than for supply.

18. [32]

    In arguing against the conclusion we have reached above, the applicant sought to draw support from the reasons of Dhanji J in ZZ v R [2024] NSWCCA 25. That was an appeal against the sentence imposed for an offence of supply of a large commercial quantity of a prohibited drug. The applicant’s culpability was found to be diminished by the fact that he intended to consume a large amount of the drug himself. (The case was unusual due to the very low purity of the drug which, in combination with the admixture provision in s 4 of the DMTA, meant that the applicant could have consumed a significant proportion of the large commercial quantity in his possession.) At [40], Dhanji J noted that “in the absence of challenge it is unnecessary to consider” whether an offence of possession for the purposes of supply contrary to s 25(2) of the DMTA is made out where the amount that was intended to be supplied was less than the large commercial or commercial quantity possessed. This observation, while acknowledging a potential argument, provides no authority in support of the applicant’s argument.

19. [33]

    There is, in fact, a surprising dearth of authority in relation to the issue. Reference was made by the applicant to a decision of the Full Court of the Federal Court of Australia in Hughes v R (1983) 49 ALR 110; (1983) 10 A Crim R 125. That case was decided in the context of a provision similar, though not identical to, s 29. Section 4(3) of the Poisons and Narcotic Drugs Ordinance 1978 (ACT) (the Ordinance) created an offence of possessing a controlled substance for the purpose of supplying the substance to another person or persons. Section 4(4) provided:

20. [34]

    It was argued in Hughes that an accused to whom the provision otherwise applied might discharge the onus of proof resting on him if it was proved an amount of the drug was for the accused’s own use such that the remainder was an amount less than the prescribed applicable quantity. The argument has parallels to the argument here. It failed. The Court held (at 118-119):

21. [35]

    The applicant arguably draws support from the statement in Hughes that an accused who does not prove that the possession of the entire quantity of the drug in their possession was otherwise than for supply “will be deemed to have at least some of it in [their] possession for the purpose of supply”. This conclusion allows for the possibility that the amount deemed to be in possession for the purposes of supply might be less than the whole of the quantity possessed. This statement, however, expresses no more than an element of caution with respect to an issue that was not the subject of argument and did not need to be decided. It is, in this regard, not dissimilar to the aside made by Dhanji J in ZZ. It provides no authority for the applicant’s argument which must, in any event, fail for the reasons of construction discussed above.

22. [36]

    For the reasons given above, the applicant’s primary argument must fail.

23. [37]

    The applicant submitted that s 29(a) did not apply at all in circumstances where it was established that some of the drug was for personal use (or more correctly, possessed other than for supply). While making the submission it was also put in written submissions that “this issue may not need to be determined in this matter”, presumably, against the prospect of success on the primary argument. While there may be a question as to whether, in the absence of reliance on s 29, the applicant could be found guilty of having any part of the drug in his possession for supply, we are content to deal with this argument, as it was put, in the alternative.

24. [38]

    The argument appears to go further than that rejected in Hughes, as discussed above. The applicant sought to distinguish Hughes, noting that the provision with which Hughes was concerned, while similar, was different to s 29(a) of the DMTA. It was pointed out that, while s 4(4) of the Ordinance deemed the relevant possession to be for supply “unless the contrary is proved”, s 29(a) operates to deem possession to be for supply unless the accused proves the possession was “otherwise than for supply”. It is, with respect, difficult to discern any meaningful difference between the two formulations.

25. [39]

    There is nothing in the text of s 29(a) to support the applicant’s argument that it had no application. The reasoning in Hughes, in the passage set out above, is equally apposite to the present context. The applicant’s argument that s 29(a) had no application must fail.

26. [40]

    The applicant also raised an issue as to whether the trial judge in coming to his conclusion in fact relied on the deeming provision in s 29(a). It was not suggested that the prosecution did not rely on the deeming provision before the trial judge. Given this, it is open to question whether, if as the applicant contends the trial judge did not rely on s 29(a), it would have any relevance to establishing that the verdict was unreasonable. It is, in any event, clear that the trial judge did rely on the deeming provision.

27. [41]

    His Honour’s reasons are structured by the use of headings. His Honour set out various matters under the headings “Introduction” and “General Directions”. Under the latter heading his Honour set out a number of general directions including as to matters such as the onus and burden of proof. His Honour then, under the heading “The Issues in the Case”, referred to the police having found the quantity of butanediol in the applicant’s possession. His Honour then stated:

28. [42]

    His Honour subsequently made reference to the manner in which s 29(a) of the DMTA operates and said:

29. [43]

    In coming to his finding of guilt his Honour said:

30. [44]

    Having regard to the above, the argument that his Honour did not apply the deeming provision is untenable. Nor, having regard to the passages set out above, is there any substance in the applicant’s submission that his Honour’s reasons were deficient with respect to his reliance on the deeming provision.

Conclusion

1. [45]

   For the reasons given above, the applicant’s appeal against conviction must be dismissed. Before doing so, however, we pause to observe that the applicant’s case with respect to his intended use of the drug had relevance to the determination of sentence.

2. [46]

   His Honour on sentence accepted that the applicant was “a heavy and experienced drug user” and that while he could not determine how much, “a portion” of the butanediol was for his own use. While his Honour did not attempt to determine whether the amount of the drug in the applicant’s possession fell above or below the point of demarcation set by the DMTA for offences of supply of a commercial quantity of butanediol, no criticism can be made of his Honour in this regard. Where, relative to the maximum penalty, the applicant’s sentence should sit was to be determined based on the facts as relevant and known to the Court: The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54. Here, the maximum penalty was that set for an offence against s 25(2) involving a commercial quantity. A particular offence of supply of a commercial quantity of a prohibited drug against s 25(2) of the DMTA is, however, not necessarily more serious than an offence of supply against s 25(1) of the DMTA: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. By way of example, in ZZ (at [51]), Dhanji J observed that the objective gravity of the supply in that case, was “lower than that for most commercial supply offences, and possibly supply offences in general”. Ultimately, as was said in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [40] per McHugh, Hayne and Callinan JJ, albeit in a slightly different context, “the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn”.

3. [47]

   The applicant’s offence did not become radically more serious at the point at which the quantity of the drug in his possession moved from 999 grams to 1 kilogram. Nor could the fact that the applicant did not intend to supply all of the drug in his possession be removed from the equation. The absence of any complaint with respect to the sentence implicitly acknowledges that his Honour did not misunderstand these basic principles.

Orders

1. [48]

   We make the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.