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

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[Insert the following section where indicated if it is alleged that the accused conducted a business of trafficking (Giretti trafficking).

In cases of Trafficking a Commercial or Large Commercial quantity on a Giretti basis, see Charge: Trafficking a Commercial / Large Commercial Quantity of a Drug of Dependence - Giretti trafficking.]

 

The first element relates to what the accused did. S/he must have carried on a business of trafficking.

This requires the prosecution to prove, beyond reasonable doubt, that the accused was involved in a continuing trade or business of dealing in drugs over a period of time, or had at least been involved in the transmission of drugs from source to consumer on a regular and commercial basis.

In this case it is alleged that the accused conducted this business between [insert dates]. The business is alleged to have involved [insert acts of trafficking and name of drug].

Although for this element to be met you must find that the accused conducted a trafficking "business", it is not necessary for the prosecution to prove that the accused had set up a formal "business" structure, or had entered into an agreement with anyone to traffick in drugs. The word "business" is used in a broad sense, to mean that the accused had conducted a relatively continuous activity, over a period of time, involving commercial dealings in drugs.

You also do not need to find that the accused was conducting this business for the whole of the specified period. It is sufficient for the prosecution to prove that NOA was carrying on such a business for some portion of the period [insert dates].

However, it is not enough for the prosecution to simply prove that the accused committed a number of isolated acts of trafficking during this period of time. For example, proof that the accused sold drugs on two or three occasions during that time would not, by itself, be sufficient for you to find that the accused carried on an ongoing trafficking business. For this element to be met, you must be satisfied that the accused’s activities took place with the necessary degree of regularity and system to amount to a "business" or "trade".

In other words, you must be able to draw an inference from all of the evidence in this case that the accused carried on a trafficking business, rather than having merely committed a few unrelated acts of trafficking.[1] You will remember what I told you about inferences.

That is not to say that the prosecution must prove that the accused committed more than two or three acts of trafficking for this element to be met. Proof of two or three acts may be sufficient, if you can infer from those acts, and all of the other evidence in the case, that the accused was carrying on a business of trafficking over the relevant period.

In this case, the prosecution submitted that this inference should be drawn because [insert evidence capable of sustaining the inference]. The defence responded [insert any evidence and/or arguments].

It is for you to determine whether to infer, from all of the facts and circumstances of the case, that NOA was involved in a continuing trade or business of dealing in drugs, or had at least been involved in the transmission of drugs from source to consumer on a regular and commercial basis. It is only if you are satisfied, beyond reasonable doubt, that this was the case that this first element will be met.

As what you are determining is whether the accused carried on a trafficking business, rather than having committed isolated acts of trafficking, this element will be satisfied even if you do not all agree about which particular acts of trafficking alleged by the prosecution have been proven – as long as you all agree that an inference can be drawn from all of the evidence that the accused conducted a business of trafficking.

However, it is important that you do not draw this 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 element beyond reasonable doubt.

 

Notes

[1] If the accused has admitted carrying on a business of trafficking, this section will need to be modified.

 

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

7.6.1.2 - Charge: Trafficking in a Drug of Dependence

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)

7.6.1.16 - 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