Click here to obtain a Word version of this document for adaptation.
[Insert the following section where indicated if it is alleged that the accused trafficked by possessing a drug for sale.]
The first element relates to what the accused did. S/he must have intentionally committed an act of trafficking.
The law defines "trafficking" to include a number of different activities, such as selling, exchanging, offering to sell, agreeing to sell or possessing for sale certain drugs, known as "drugs of dependence".
The prosecution does not need to prove that the accused did all of these things. For this element to be satisfied, the prosecution only needs to prove that the accused intentionally committed at least one of the acts specified by law.
In this case, the relevant act of trafficking is possessing a drug of dependence for sale. This requires the prosecution to prove two things beyond reasonable doubt:
First, that NOA possessed a drug of dependence – in this case [insert name of drug]. I will explain the meaning of "possession" in a moment.
Second, that NOA intended to sell that drug. I will explain what this means after I have told you the meaning of "possession".
According to the law, a person is said to have in their possession whatever is, to their knowledge, physically in their custody or under their physical control. In relation to the drug in question in this case, the [insert name of drug], this requires the prosecution to prove:
[If it is alleged that the accused was in possession of a drug that was not physically with them, add the following shaded section]
According to this definition of possession, a person does not need to have been carrying the drug or to have had it on them to have it in their possession. They will be in possession of whatever is, to their knowledge, in their custody or under their control, even if it is not with them.
[In cases of joint possession, add the following shaded section]
It is possible for more than one person to possess an item – so long as they each meet all of the requirements I have just mentioned.
In this case, the prosecution alleged that NOA was in possession of [insert name of drug and insert relevant evidence]. The defence responded [insert any relevant evidence or arguments].
It is for you to determine, based on all of the evidence, whether NOA was in possession of the [insert name of drug]. If you decide, beyond reasonable doubt, that NOA had physical custody and control of that drug, intended to have such custody or control, and knew that the substance over which they had custody or control was a drug, or were at least aware of the likelihood that it was a drug, then s/he will have been in possession.
Intention to Sell
Even if you find that NOA was in possession of the [insert name of drug], this is not sufficient by itself for this first element to be satisfied. As I mentioned earlier, the prosecution must also prove that s/he intended to sell that drug. In other words, you must be satisfied that the accused possessed the [insert name of drug] for the purpose of selling it, rather than for another reason such as personal use.
It is not necessary for the prosecution to prove that NOA had a particular sale in mind, or knew who s/he was going to sell the drugs to. They only need to prove that the accused had a general intention to sell the drugs in the future.
In this case, the prosecution alleged that the accused had an intention to sell the [insert name of drug and relevant evidence]. The defence responded [insert any evidence or arguments].
It is for you to determine, based on all of the evidence, whether NOA both possessed the [insert name of drug], and intended to sell it. It is only if you are satisfied of both of these matters, beyond reasonable doubt, that this first element will be met.
Last updated: 21 September 2011