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7.6.1.2 - Charge: Trafficking in a Drug of Dependence

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I must now direct you about the crime of trafficking in a drug of dependence. To prove this crime, the prosecution must prove the following [2 / 3] elements beyond reasonable doubt:

One - the accused intentionally [committed an act/carried on a business] of trafficking.

Two - the accused intentionally trafficked in a drug of dependence.

[If it is alleged that the accused trafficked in a commercial or large commercial quantity, or to a child, add the following shaded section]

Three - the accused intentionally trafficked [in not less than a commercial/ large commercial quantity of that drug/to a child].

I will now explain these elements in more detail.

Trafficking

[The nature of the first element will depend on the act[s] of trafficking alleged. The judge should insert one or more of the additional directions from the list below, as is relevant to the circumstances of the case.]

 

Drug of Dependence

The second element that the prosecution must prove beyond reasonable doubt is that the accused intentionally trafficked in a drug of dependence. There are two parts to this element. The prosecution must prove that the substance allegedly trafficked by the accused was a drug of dependence. They must also prove that the accused intended to traffick in a drug of dependence.

The law says that [insert name of drug] is a drug of dependence. The first part of this element will therefore be satisfied if the prosecution has proved, beyond reasonable doubt, that NOA [insert relevant act of traffickingi.e. sold/ exchanged/ manufactured/ offered to sell/ agreed to sell/ prepared for trafficking/ possessed for sale/ conducted a business of trafficking involving] any quantity of [insert name of drug].

[If the drug in question was mixed with another substance, add the following shaded section]

It does not matter whether the [insert name of drug] was mixed with another substance. The issue here is whether the accused trafficked in [insert name of drug] at all – whether in its pure state or mixed with something else.

[If it is alleged that the accused trafficked by offering or agreeing to sell a drug of dependence, add the following shaded section]

The accused does not need to have ever actually had the [insert name of drug] in their possession. S/he simply needs to have made an [offer/ agreement] to sell that drug.

[If it is alleged that a portion of the drug was unusable, add the following shaded section]

In this case you have heard [evidence/arguments] that [some of] the [insert name of drug] allegedly trafficked by NOA was unusable because [insert evidence]. This is not relevant to the issue of whether or not it was a drug of dependence that the accused trafficked in. Even if a substance is unusable, it is still classified as a drug of dependence as long it contains [insert name of drug].

In this case, the prosecution provided the following evidence that the substance the accused allegedly trafficked was [insert name of drug and summary of relevant evidence]. The defence responded [insert any evidence and/or arguments]. It is for you to determine, based on all the evidence, whether that substance was a drug of dependence, namely [insert name of drug].

Intention to traffick in a drug of dependence

For this second element to be satisfied, the prosecution must also prove – beyond reasonable doubt – that the accused intended to traffick in a drug of dependence. That is, the accused deliberately [insert relevant act of trafficking] a prohibited drug.

It is not necessary for the accused to have intended to traffick in the specific drug it is alleged that s/he trafficked in – in this case [insert name of drug]. This part of the second element will be satisfied as long as the accused intended to traffick in any drug of dependence.

In determining whether or not the accused intended to traffick in a drug of dependence, you will need to decide if you can draw an inference from all of the evidence in the case that s/he had this intention. [2] You will remember what I have told you about inferences.

You may be able to draw this inference if you find that the accused knew or believed that it was a prohibited drug, such as [insert name of drug], that s/he was [insert relevant act of trafficking].

However, you do not need to find that the accused actually knew s/he was trafficking in a prohibited drug in order to draw this inference. Proof that the accused was aware that there was a significant and real chance that his/her conduct involved trafficking is also capable of sustaining the inference that s/he intended to traffick in a drug of dependence.

This means that, if you find that the accused was aware of the likelihood that the substance s/he was [insert relevant act of trafficking] was a drug of dependence, you may draw the inference that s/he had an intention to traffick in such a drug. That is, you may infer that because the accused was aware that there was a significant and real chance that his/her conduct involved trafficking in a prohibited drug, s/he must have intended to traffick in that drug.

[If "wilful blindness" as to the nature of the substance arises as an issue, consider the shaded section]

["Wilful blindness" may be relevant if there is evidence that the accused realised there was a risk that s/he was trafficking in a drug of dependence, and deliberately chose to close his/her eyes to that risk so that s/he could later deny knowledge and avoid liability.]

You could also draw an inference that NOA intended to traffick in a drug of dependence if you find that, given the circumstances, s/he would have suspected the nature of the substance s/he was [insert relevant act of trafficking], and deliberately failed to make further inquiries for fear of learning the truth. That is, s/he was aware that there was a risk that s/he was trafficking in a drug of dependence, but deliberately closed his/her eyes to that risk to avoid possible liability. In such a situation, you may conclude that although NOA did not positively know that s/he was trafficking a drug of dependence, s/he nevertheless intended to do so. [3]

It is for you to determine whether to infer, from all of the facts and circumstances of the case, that the accused had this intention. However, it is important that you do not draw such an inference unless you are satisfied that it is the only inference that is reasonably open in the circumstances. If any other reasonable explanation is available, then the prosecution will not have proved this second element beyond reasonable doubt.

In this case, the prosecution submitted that you should infer that the accused intended to traffick in a drug of dependence from [insert evidence capable of sustaining the inference].

[If the accused denied this intention due to ignorance of the drug’s existence, consider the following section]

[This may be relevant if the accused denied having an intention to traffick in a drug of dependence because they did not know of the existence or nature of the drug, or were not aware of the likelihood that it was a drug of dependence.]

The defence denied that NOA had an intention to traffick in a drug of dependence. They alleged that s/he did not know, or was not aware of the likelihood, that it was a drug s/he was [insert relevant act of trafficking]. [Insert relevant evidence and arguments].

It is important to remember that it is the prosecution who must prove, beyond reasonable doubt, that the accused had the relevant intention. So if you are not satisfied that the accused knew or was aware of the likelihood that it was a drug s/he was trafficking, and there is no other basis from which you can infer that the accused intended to traffick in a drug of dependence, then this second element will not be met.

[Insert any defence evidence or arguments.]

So you must decide, based on all of the evidence, whether the substance trafficked by the accused was a drug of dependence, and that the accused intended to traffick in such a drug. It is only if you are satisfied of both of these matters, beyond reasonable doubt, that this second element will be met.

Possession of a traffickable quantity

[If it is alleged that the accused possessed a traffickable quantity of drugs, and it is not common ground that the drugs were possessed for the purpose of trafficking, insert Additional Direction: Possession of a Traffickable Quantity here.]

Commercial or Large Commercial Quantities

[If it is alleged that the accused trafficked in a large commercial (s71) or commercial quantity (s71AA) of a drug of dependence, insert Additional Direction: Commercial or Large Commercial Quantities here.]

Trafficking to a Child

[If it is alleged that the accused trafficked to a child (s71AB), insert Additional Direction: Traficking to a Child here.]

Authorisation /License

[If it is alleged that the accused was authorised or licensed to traffick in a drug of dependence, insert Additional Direction: Authorisation and Licensing here.]

Summary

To summarise, before you can find NOA guilty of trafficking in a drug of dependence, the prosecution must prove to you beyond reasonable doubt:

One – that s/he intentionally committed an act of trafficking, being the [insert relevant act of trafficking] of a prohibited drug; and

Two – that s/he intentionally trafficked in a drug of dependence. That is, the substance s/he [insert relevant act of trafficking] was [insert name of drug], and that s/he intended to traffick in a prohibited drug.

[If it is alleged that the accused trafficked to a child, or in a commercial or large commercial quantity, add the following shaded section]

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of trafficking in a drug of dependence [to a child/ in a commercial quantity/ in a large commercial quantity].

 

Notes

[1] This charge can be used in cases involving:

[2] If it is alleged that the accused admitted having such an intention, this part of the charge will need to be modified accordingly.

[3] Such cases of "wilful blindness" will be rare, and judges should be cautious before charging the jury about this possibility: R v Garlick (No.2) (2007) 15 VR 388; [2007] VSCA 23.

 

Last updated:18 May 2016

See Also

7.6.1 - Trafficking in a Drug of Dependence

7.6.1.1 - Charge: Trafficking a Commercial / Large Commercial Quantity of a Drug of Dependence - Giretti trafficking

7.6.1.3 - Additional Direction: Selling, Exchanging or Manufacturing a Drug of Dependence

7.6.1.4 - Checklist: Trafficking by Sale, Exchange or Manufacture

7.6.1.5 - Checklist: Trafficking by Sale, Exchange or Manufacture (Commercial or Large Commercial quantity)

7.6.1.6 - Additional Direction: Offering or Agreeing to Sell a Drug of Dependence

7.6.1.7 - Checklist: Trafficking by Offering or Agreeing to Sell

7.6.1.8 - Checklist: Trafficking by Offering or Agreeing to Sell (Commercial or Large Commercial quantity)

7.6.1.9 - Additional Direction: Preparing a Drug of Dependence for Trafficking

7.6.1.10 - Checklist: Trafficking by Preparing a Drug for Trafficking

7.6.1.11 - Checklist: Trafficking by Preparing a Drug for Trafficking (Commercial or Large Commercial quantity)

7.6.1.12 - Additional Direction: Possessing a Drug of Dependence for Sale

7.6.1.13 - Checklist: Trafficking by Possession for Sale

7.6.1.14 - Checklist: Trafficking by Possession for Sale (Commercial or Large Commercial quantity)

7.6.1.15 - Additional Direction: Conducting a business of trafficking (Giretti trafficking)

7.6.1.16 - Additional Direction: Possession of a traffickable quantity

7.6.1.17 - Additional Direction: Commercial or Large Commercial Quantity

7.6.1.18 - Additional Direction: Trafficking to a Child

7.6.1.19 - Checklist: Trafficking to a Child (Sale or Exchange)

7.6.1.20 - Checklist: Trafficking to a Child (Offering or Agreeing to Sell)

7.6.1.21 - Additional Direction: Authorisation and Licensing