Western Australia, Australia

Possession with intent to sell or supply in WA: how the deemed supply presumption works

Many people charged with a drug offence in Western Australia are surprised to learn they face possession with intent to sell or supply even though police never saw a sale. Section 11 of the Misuse of Drugs Act 1981 (WA) is often the reason.

Published 27 October 2026

This article explains how that presumption works, why the quantity matters so much, what it takes to rebut it, and why the consequences of a supply charge are far more serious than those of simple possession.

Simple possession versus possession with intent to supply

The Misuse of Drugs Act 1981 draws a sharp line between two kinds of possession offence.

Under section 6(2), a person who has a prohibited drug in their possession, or uses one, commits a simple offence. These matters are generally dealt with in the Magistrates Court.

Under section 6(1)(a), a person who has a prohibited drug in their possession with intent to sell or supply it to another commits a crime. Section 6(1) also covers manufacturing or preparing a prohibited drug, and selling or supplying (or offering to sell or supply) one.

The physical facts in both offences can be identical: a person, a bag, a quantity of a drug. The difference lies in what the person intended to do with it. Ordinarily, the prosecution must prove every element of an offence beyond reasonable doubt, including intention. Section 11 changes that in an important way.

What section 11 actually says

Section 11(a) provides that, for the purposes of section 6(1)(a), a person is deemed to possess a prohibited drug with intent to sell or supply it if they possess a quantity that is not less than the quantity specified in Schedule V for that drug. The deeming applies “unless the contrary is proved.”

Section 11(b) does the same for prohibited plants, by reference to the number of plants specified in Schedule VI.

In practical terms, once the prosecution proves possession of a threshold quantity, the law presumes the intent to supply. The burden then shifts to the accused person to prove that they did not have that intention.

The thresholds in Schedule V

Schedule V lists the quantities that trigger the presumption. The thresholds are low for many commonly encountered drugs. For example, the schedule sets:

• 2.0 grams for methylamphetamine
• 100 grams for cannabis, and 20 grams for cannabis resin

Other drugs have their own amounts, and the schedules are amended from time to time, so the current version of the Act should always be checked.

Two grams of methylamphetamine is not a large amount. A person who uses the drug heavily and buys in bulk to save money can easily hold that quantity for personal use, yet still find themselves facing a presumed supply charge.

How the presumption can be rebutted

The words “unless the contrary is proved” mean the accused person carries the burden of displacing the presumption. In Australian law, a burden of this kind placed on an accused is generally assessed on the balance of probabilities, meaning the accused must show it is more likely than not that the drugs were held for a purpose other than sale or supply.

Evidence that may be relevant includes:

• Patterns of personal use. Evidence of the person’s dependence, frequency of use and tolerance can explain why a larger quantity was held.
• Purchasing habits. Buying in bulk to reduce cost or the number of transactions may be consistent with personal use.
• The absence of supply indicators. Police often point to scales, small resealable bags, tick lists, large amounts of cash or multiple phones. Where these are missing, that can matter.
• Financial circumstances. The person’s income and spending can be relevant to whether the drugs were affordable for personal use.
• Phone and message evidence. Messages can cut both ways: they may suggest dealing, or they may support a personal-use explanation.

Rebutting the presumption is a fact-heavy exercise. The person’s own account, if given, will be tested, and the court will weigh it against everything else in the evidence.

When the quantity is below the threshold

If the amount is below the Schedule V quantity, the presumption does not apply. That does not mean a supply-related charge cannot be brought. The prosecution can still try to prove intent to supply beyond reasonable doubt using other evidence: messages arranging sales, packaging, cash, surveillance, or admissions.

Many supply cases are built from this kind of circumstantial evidence. Some begin with controlled purchases by undercover officers, where the evidence comes from the transaction itself rather than from a seizure. Those cases raise their own questions about how police obtained the evidence, which are covered in our article on whether entrapment can be raised as a defence to a drug charge in Western Australia.

Alternative verdicts

Section 10 of the Act allows a court trying a section 6(1) crime to convict of the simple offence under section 6(2) if the evidence proves possession but not the intent to supply. This is significant: a successful challenge to the supply element does not necessarily end the case, but it can change the outcome dramatically.

Why the charge matters: penalties

The gap between a simple possession charge and a supply charge is reflected in the maximum penalties under section 34.

• A simple offence under section 6(2) carries a maximum fine of $2,000, imprisonment for 2 years, or both.
• A crime under section 6(1) generally carries a maximum fine of $100,000, imprisonment for 25 years, or both.
• A crime under section 6(1) involving a trafficable quantity of methylamphetamine (28 grams or more, being the quantity in Schedule VII) carries a maximum penalty of life imprisonment.

Maximum penalties are reserved for the worst cases, and sentences depend on many factors. But the statutory ceiling tells a court how seriously Parliament regards the offence.

Drug trafficker declarations and property confiscation

A supply conviction can also expose a person to a declaration that they are a drug trafficker under section 32A. On the application of the prosecution, the court must make the declaration if, among other things, the person is convicted of a serious drug offence involving a quantity at or above the Schedule VII amount, or has had two or more prior serious drug convictions within the preceding 10 years.

A declaration has serious consequences under the Criminal Property Confiscation Act 2000 (WA), which can result in the confiscation of property owned or effectively controlled by the declared person, not only property connected to the offence. Whether a declaration is likely, and its effect, should be assessed early in any case involving larger quantities.

Possession itself must still be proved

The presumption only operates once possession is established. Possession is defined broadly in section 3 to include having control or dominion over a thing. Even so, questions about possession are often contested, particularly where drugs are found in a shared house, a borrowed car or a common area. Knowledge of the drug’s presence is generally relevant, and the circumstances in which the drug was located will be examined closely.

The quantity also has to be proved. Analysis of the substance by an approved analyst, the weight attributed to the drug and how mixtures are treated can all affect whether the threshold was reached.

Practical points if you have been charged

If you have been charged with possession with intent to sell or supply in WA:

1. Do not assume the charge reflects what police can prove. The presumption is rebuttable, and possession and quantity must still be established.
2. Be cautious about what you say. Statements made to police can be used to support or undermine a personal-use explanation.
3. Look at how the evidence was obtained. Searches, seizures and undercover purchases are governed by law, and the lawfulness of police conduct can affect what evidence is admitted. See also our guide to excluding unlawfully obtained evidence and police drug search powers.
4. Get advice early. Bail, charge negotiation, the strength of a rebuttal and the risk of a drug trafficker declaration all benefit from early assessment by a lawyer practising criminal law in Western Australia.

For information about legal services in Perth, visit our Perth team at Podmore Legal — Perth criminal defence specialists in drug offence matters.

Related reading: entrapment and undercover drug operations, possession with intent to supply, excluding unlawfully obtained evidence, police drug search powers, the Virginia criminal law overview, and the TroofLaw blog.