What Happens If Police Find Drugs in Your Care: Filippetti, Carey Defences & What You Can Do
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What Happens If Police Find Drugs in Your Care: Filippetti, Carey Defences & What You Can Do

BySydney Criminal Lawyers

When police discover illegal drugs in a car, house, bag or at a gathering, one of the first questions people ask is: “Was it necessarily my drugs?” That question lies at the heart of many criminal law defences in NSW. Perhaps you’ve heard of Filippetti or Carey defences. In this article, we’ll walk you through:

  • What the law says about possession and supply under the Drug Misuse and Trafficking Act 1985 (NSW)
  • The Filippetti rule (joint/common area possession) and how it helps defend people in shared spaces
  • The Carey defence (temporary holding): how someone claiming they were just holding for another might defend supply charges
  • What the prosecution must prove (elements, knowledge, exclusive possession, deemed supply)
  • Key cases from AustLII / JudCom (e.g. Alliston, R v Filippetti, Carey)
  • Practical tips: how to act if drugs are found in your care
  • How National Criminal Lawyers® can help, including early engagement, evidence gathering, negotiation and courtroom defence

We’ll also include links to judgments and resources so you can see the law for yourself.

1. The Legal Framework: Possession, Supply & Deeming Provisions

Under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW), simple possession or use of a prohibited drug is a summary offence in many cases. More serious is s 25(1), the offence of supplying a prohibited drug (which includes actual supply, or participating in supply). Courts in NSW also use s 29, a deeming provision, to treat drug possession above a certain “traffickable quantity” as possession for supply, unless the defendant rebuts that on the balance of probabilities.

These laws impose strict burdens:

  • The prosecution must prove beyond reasonable doubt every element: the substance was a prohibited drug; the accused had it; and (for supply) that the accused intended or participated in supply.
  • With “deemed supply” (s 29), once the Crown proves the amount of drug is above the traffickable quantity, the accused bears the onus (on balance of probabilities) to show it was not held for supply (e.g. for personal use or for return to owner).
  • The concept of exclusive possession must often be established by the Crown. That means showing the accused had physical and effective control over the drugs, to the exclusion of others. The case R v Filippetti is foundational.

2. The Filippetti Rule: Joint or Common-Area Possession

One of the most powerful defences when drugs are found in a shared space is the Filippetti rule. In R v Filippetti (1978) 13 A Crim R 335, Mr Filippetti lived in a crowded house where 800g of cannabis was found under a lounge cushion. Because the drugs were in a common area accessible by all house occupants, the appeal court held that the Crown could not prove he had exclusive possession. The conviction was quashed.

The principle is: mere presence or opportunity to access does not suffice. The prosecution must exclude reasonable possibility the drug belonged to someone else sharing the space. Filippetti is still cited today in possession/supply cases where multiple people share control over a location.

For example, if drugs are found in a lounge room, kitchen, or trunk of a car occupied by multiple persons, the Filippetti defence argues that the Crown has failed to prove the accused had exclusive control. Many judges direct juries on this concept, particularly in drug supply trials.

3. The Carey Defence: Holding for Someone Else

Another legally recognised defence is the Carey defence (R v Carey). Under this principle, a person who temporarily holds drugs belonging to another, with the genuine intention of returning them, should not be guilty of supply. In Carey (1990) 20 NSWLR 292, the Court held that “supply” does not include temporary holding with the intention of returning to the owner.

That said, Carey is not a blanket shield:

  • It often only applies to portions of the drug in question. In Alliston v R [2011] NSWCCA 281, the Court held that Carey could apply to part of the drugs (e.g. what the defendant claimed was in her purse), but not necessarily to hidden drugs in other locations (like in the rear of the vehicle) which she disclaimed knowledge of.
  • To have the Carey defence left to a jury, the accused must present some evidence raising the possibility of temporary custody for return, otherwise court may rule it not available. In Alliston, the trial judge failed to leave it to the jury for one part.
  • Importantly, Carey is generally a defence to supply offences, not to the base offence of possession itself. If someone is charged just with possession, Carey typically does not apply.

Hence, if you can truthfully assert you were just holding something temporarily for someone else, that can be a powerful counter to a supply prosecution, but you must be ready with credible evidence and explanation.

4. How a Case Might Unfold: Hypothetical / Real-Style Example

Imagine this scenario:

You ride in a car with friends. Police stop the vehicle. In the back seat, under a jacket left by one of your friends, they find a small bag of cocaine (above trafficking quantity). The passenger says it belongs to them, not you.

Under that scenario:

  • The Crown would allege you had possession (physical and mental). They’d need to show you had control or knowledge.
  • If the quantity is above the traffickable threshold, s 29 deemed supply may apply, unless you rebut it. The burden (balance of probabilities) would shift to you to prove it was not for supply.
  • You could argue a Filippetti defence: since the bag was in a shared, non-exclusive area (back seat luggage area accessible to all), the Crown cannot prove your exclusive possession.
  • You could also claim Carey defence: that you agreed to hold the bag briefly so the true owner could collect it later. If accepted, that part may avoid supply.
  • If the police search was illegal (no reasonable suspicion under LEPRA s 36 or s 21 for personal search), evidence might be excluded under s 138 Evidence Act 1995.

If the defence is accepted in whole or part, charges may reduce (from supply to possession) or be dismissed altogether.

5. Other Defences & Legal Considerations

While Filippetti and Carey are well-known, other defences or issues commonly arise:

  • Duress / need / emergency: if you were forced under threat to hold or transport the drugs (rare, but possible).
  • Lack of knowledge: you did not know the substance was illegal or what it was (though proving ignorance is challenging).
  • Illegal search / exclusion: as noted, if police lacked reasonable suspicion, the discovery may be quashed.
  • Chain of custody / contamination / purity: challenges to the integrity of evidence or analytic results.
  • Withdrawal / renunciation: in some limited cases, if you withdrew from participation before the act completes, though rare in NSW drug law.

6. Strategic Advice: What You Should Do Immediately

If you are in a situation where drugs are found in your care:

  1. Don’t admit ownership. Anything you say can be used against you.
  2. Gather evidence: photos, CCTV, witnesses who can attest you didn’t control the area or objects.
  3. Identify other possible owners: names, timelines, prior presence, shared keys or access.
  4. Seek legal advice early so defences (Filippetti, Carey) are flagged and evidence preserved.
  5. Challenge search legality: examine whether police had lawful grounds (reasonable suspicion) under LEPRA.
  6. Don’t discard items: maintain chain and do not destroy anything until legal advice.

7. Why Choose National Criminal Lawyers® for Drug-in-Care Cases

When the stakes are high, you want a firm that fights with precision, clarity, and results. At National Criminal Lawyers®:

  • We offer a personalised, no-bullshit style; you get direct, honest advice, not legal fluff.
  • We are aggressive at early stages, issuing letters of representation, engaging police and prosecutors, pushing for charge reductions early.
  • We’ve achieved a strong record of non-conviction and reduced outcomes in drug matters across NSW.
  • We specialise in evidence and forensic strategy: challenging possession claims, exclusion, chain of custody, and applying Filippetti/Carey defences effectively.
  • We understand the client impact: your liberty, your record, your future. We fight for minimal disruption at every stage: arrest, bail, court, sentencing.

8. Links to Resources & Cases

You can also explore full judgments and statutes via AustLII (NSW case law and DMTA). AustLII

Contact us, Sydney’s leading drug defence experts

When police find drugs in “your care” that you don’t admit owning, the legal battle is deeply rooted in possession, control, knowledge, and intention. The Filippetti and Carey doctrines remain two of the most potent defences in drug cases, a well-prepared lawyer can turn what looks hopeless into a defence win or charge reduction.

If you have been charged or suspect you may be implicated by a drug find, you need experienced counsel immediately. At National Criminal Lawyers®, we are ready to act now, helping you understand whether Filippetti or Carey defences apply, challenging improper searches, negotiating with police, and building a robust defence.

📞 Call 1800 CRIM LAW today to protect your rights, your future, and get aggressive, smart representation from a specialist drug defence lawyer.

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