Salameh v R [2024] NSWCCA 239

Salameh v R [2024] NSWCCA 239 · Read the judgment on AustLII

Catchwords: Supply prohibited drug – mental element – identity of drugs

The Court of Criminal Appeal (‘CCA’) sat a full bench in this case in order to set the record straight on the mental element in drug supply matters. They held that the prosecution is not required to prove that the accused knew the identity of the actual drug. All that is required is that the prosecution proves that the accused knew or believed they possessed a prohibited drug – not what drug it was – and also knew that the amount of the drug was of the order set out by law as relevant to the particular offence.

The applicant went to a brothel, and the prosecution case was that he administered fentanyl to a sex worker there (he was acquitted of this part of the allegation). The sex worker had a bad reaction and was hospitalised so that police became involved. When they subsequently searched the applicant’s house, they found 175.4g of fentanyl in a sealed envelope, as well as a separate amount of 3.6g of that drug. They also found 152.3g of cocaine and about $30,000 in cash. Relevantly to the (deemed) drug supply charges (he was acquitted of several other charges), his hand- and fingerprints were on the envelope containing the fentanyl. He was found guilty of possession – that is (deemed) supply – of the fentanyl following a judge-alone trial. At sentence, confronted with the fact that his hand- and fingerprints were on the envelope containing the fentanyl, he asserted that he had believed all the drugs to be cocaine and denied knowledge of fentanyl. He appealed on grounds including (relevantly to this summary) that the trial judge had erred in his approach to the applicant’s required state of knowledge of the quantity of the prohibited drug.

This presented the CCA with the opportunity to deal with a longstanding question: in a drug supply case under the Drug Misuse and Trafficking Act (the ‘DMTA’), does the prosecution have to prove that the accused knew the specific identity of the drug they possessed in order to establish the accused’s guilt? A bench of five judges sat to hear the issue. Basten JA wrote the leading judgment, with Bell CJ Payne JA and Sweeney J agreeing with additional reasons, and Dhanji J also agreeing with further additional reasons.

In relation to supply of a prohibited drug under s 25(1), for which no quantity of drug has been specified (noting that this accused was in fact charged under s 25(2)), it has been universally accepted that the necessary element of knowledge is established so long as the accused knows or believes that there is a real possibility that the substance possessed is in fact a prohibited drug (at [119]). No case to which the Court was taken holds that a charge of supply under the DMTA requires knowledge of the identity of the prohibited drug, so long as offender believes it to be a prohibited drug (at [73]). The exception was a decision in R v Busby [2018] NSWCCA 136 (‘Busby’) which, as set out below, had some limitations and had never been followed. High Court authority in a similar Commonwealth context should also be applied in this context: the mental element for offences of supply under s 25 should be the same regardless of whether they involve an indictable, commercial, or large commercial quantity. In making that assessment, there is an important distinction to be drawn between law and fact (at [72];[75]-[90]).

The mental element of offences of supply under s 25(2) of the DMTA requires knowledge that the accused:

• Knows or believes that the substance is a prohibited drug. And
• Knows, in the accepted sense (that is, as set out in the seminal decision of He Kaw Teh v The Queen (1985) 157 CLR 523), that the quantity of the drug in fact in their possession is of the order of the quantity that the law identifies as either a commercial or large commercial quantity (as relevant).

The accused need not have any knowledge or belief as to the actual drug, nor as to the legal significance of the quantity. That is, the quantity prescribed under s 29 under the DMTA, necessary to engage the deemed supply provisions, is not the subject of a mental element (at [126]).

To the extent that a previous decision of the Court, Busby, held to the contrary, that decision was explicitly overruled in each of the three judgments (Basten JA at [126], the plurality at [29], Dhanji J at [153]).

For those and other reasons the conviction appeal was rejected.

Note that despite the principal decision here, the identity of the drug is not completely irrelevant: a finding that the supplier genuinely believed it to be a different prohibited drug may still be relevant on sentencing (at [125] per Basten JA; at [29] per the plurality).