Previous Topic

Next Topic

Book Contents

Book Index

7.6.1.17 - Additional Direction: Commercial or Large Commercial Quantity

Click here to obtain a Word version of this document for adaptation.

 

Note - This charge is only for use in cases of trafficking on a single occasion. In cases of Giretti trafficking, use Charge: Trafficking a Commercial / Large Commercial Quantity of a Drug of Dependence - Giretti trafficking.

 

[Insert this section if it is alleged that the accused trafficked in a large commercial (s71) or commercial quantity (s71AA) of a drug of dependence.]

 

The third element that the prosecution must prove beyond reasonable doubt is that the accused intentionally trafficked in not less than a [commercial/ large commercial] quantity of a drug of dependence. There are also two parts to this element. The prosecution must prove that the accused trafficked in the relevant quantity of [insert name of drug]. They must also prove that the accused intended to traffick in not less than that quantity.

The law says that [insert relevant weight or number of plants] is a [commercial/ large commercial quantity] of [insert name of drug]. The first part of this element will therefore be satisfied if the prosecution has proved, beyond reasonable doubt, that NOA [insert relevant act of trafficking] not less than [insert relevant quantity and name of drug].

It is not necessary for the prosecution to establish the precise amount of drugs trafficked by the accused for this part of the element to be met. They only need to establish that the amount trafficked was not less than the amount specified by the law.

[If the prosecution relies on cuttings, add the following shaded section]

In this case there has been a dispute about the number of plants trafficked by the accused. According to the law, a plant includes a cutting of a plant, whether or not it has roots. Even if it dies before becoming usable, it should still be counted as a "plant".[1]

[If the quantity is measured by weight and the drugs had not been sold, add the following shaded section]

In calculating the weight, you should use the weight of the drug at the time the offence was committed, rather than the amount it would have weighed when it was ultimately sold.

[If it is alleged that the trafficking was by offering or agreeing to sell a drug, add the following shaded section]

The relevant quantity in this case is the [weight of the drug/number of plants] the accused [offered/ agreed] to sell. The amount of drugs actually possessed by the accused, if any, is not relevant to this calculation.

[In cases of possession for sale, if a portion of the drugs possessed were unusable, add the following shaded section]

The relevant quantity of drugs is not the [weight of the drug/number of plants] possessed by the accused, but the [weight of the drug/number of plants] possessed for sale. You should not include in your calculations any drugs possessed by the accused that they never intended to sell. This includes any portion of the drugs that you find were unusable, if the accused did not plan to sell that portion.

Remember, it is for the prosecution to prove that the accused possessed not less than a [commercial/ large commercial] quantity of drugs for sale. So if the prosecution cannot prove beyond reasonable doubt that NOA intended to sell an unusable portion of drugs, then that portion should not be included in your calculations.

In this case, the defence alleged that there was such a portion of unusable drugs. [Insert relevant evidence and/or arguments].

In this case, the prosecution provided the following evidence that the accused allegedly trafficked in a [commercial/ large commercial] quantity. [Insert relevant evidence]. The defence responded [insert any evidence and/or arguments]. It is for you to determine, based on all the evidence, what [weight of the drug/number of plants], if any, was trafficked.

Intention to traffick in a commercial/large commercial quantity

For this third element to be satisfied, the prosecution must also prove, beyond reasonable doubt, that when the accused [describe relevant act of trafficking], s/he intended to traffick in not less than a [commercial/ large commercial] quantity. That is, s/he deliberately [insert relevant act of trafficking] not less than [insert weight of the drug/number of plants and name of drug].

The prosecution does not need to prove that the accused intended to traffick in that precise [weight of the drug/number of plants]. It is sufficient for the prosecution to prove that NOA intended to traffick in not less than [insert relevant weight or number of plants].

In determining whether NOA intended to traffick in not less than a [commercial/ large commercial] quantity, you will once again need to decide if you can draw an inference from all of the evidence in the case that s/he had such an intention.[2]

As I explained to you earlier, you may draw such an inference if you find that the accused knew, believed or was aware that there was a significant or real chance that s/he was [insert relevant act of trafficking] not less than that [insert weight of the drug or number of plants and name of drug].

If "wilful blindness" as to the relevant threshold arises as an issue, consider the following shaded section

["Wilful blindness" may be relevant if there is evidence that the accused realised there was a risk that s/he was trafficking more than the relevant threshold, 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 not less than a [commercial/ large commercial] quantity if you find that, given the circumstances, s/he would have suspected that that [weight of the drugs/number of plants] was being trafficked, 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 [insert relevant trafficking act and relevant weight or number of plants], 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 in a [commercial/ large commercial] [weight of drugs/number of plants], s/he nevertheless intended to traffick in such a [number/weight].[3]

It is for you to determine whether to draw this inference, from all of the facts and circumstances of the case. However, it is once again 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 third element beyond reasonable doubt.

In this case, the prosecution submitted that you should infer that the accused intended to traffick in not less than a [commercial/ large commercial] quantity because [insert evidence capable of sustaining the inference].

If the accused denied this intention due to ignorance of the quantity trafficked, add the following section

[This may be relevant if the accused denied having an intention to traffick in a [commercial/ large commercial] quantity because s/he did not know, or was not aware of the likelihood, that s/he was trafficking in such a quantity.]

The defence denied that NOA had an intention to traffick in not less than a [commercial/ large commercial] quantity, alleging that s/he did not know, or was not aware of the likelihood, that s/he was [insert relevant act of trafficking] that [weight/number of plants] of [insert name of drug]. [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 accused knew or was aware of the likelihood s/he was trafficking in not less than a [commercial/ large commercial] [weight/number of plants], and there is no other basis from which you can infer that the accused intended to traffick in that quantity, then this third element will not be met.

[Insert any other defence evidence or arguments.]

So you must decide, based on all of the evidence, both whether the accused trafficked in not less than a [commercial/ large commercial] quantity of a drug of dependence, and whether the accused intended to traffick in that quantity when s/he [identify relevant act]. It is only if you are satisfied of both of these matters, beyond reasonable doubt, that this third element will be met.

 

Notes

[1] This section of the charge will need to be modified if the offence was alleged to have been committed prior to the commencement of s8 of the Drugs, Poisons and Controlled Substances (Amendment) Act 2006 on 1 May 2007. See Trafficking in a Drug of Dependence for further information.

[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

7.6.1.2 - 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)

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

7.6.1.16 - Additional Direction: Possession of a traffickable 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