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[Insert the following section where indicated if it is alleged that the accused trafficked to a child (s71AB).]
The third element that the prosecution must prove beyond reasonable doubt is that the accused intentionally trafficked to a child. There are also two parts to this element. The prosecution must prove that the accused trafficked to a child. They must also prove that the accused intended to traffick to a child.
The law says that a child is a person who is under 18 years old. 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 and name of drug] to a person who was under 18 at that time.
In this case, the prosecution alleged that NOA trafficked to a child when [insert summary of relevant evidence]. The defence responded [insert any evidence and/or arguments].
Intention to traffick in a drug of dependence
For this third element to be satisfied, the prosecution must also prove, beyond reasonable doubt, that the accused intended to traffick to a child. That is, they deliberately [insert relevant act of trafficking and name of drug] to a child.
In determining whether NOA intended to traffick to child, you will once again need to decide if you can draw an inference from all of the evidence in the case that [he/she] had such an intention.
The process for drawing this inference is the same as that which I explained to you earlier. That is, you may draw such an inference if you find that the accused knew, believed or were aware of the likelihood that they were [insert relevant act of trafficking] a drug to a child.
If the accused may have deliberately failed to inquire about the age of the person, consider the following section
[This may be relevant if an inference should be drawn from the fact that the accused deliberately failed to make inquiries about the age of the person they were trafficking to.]
You could also draw an inference that the accused intended to traffick to a child if you find that they deliberately failed to make inquiries about the age of the person to whom they were [insert relevant act of trafficking] the drug, in circumstances where they would have been suspicious about the age of that person. In such a situation, you may conclude that although the accused did not positively know that they were trafficking to a child, they nevertheless intended to traffick to one.
If "wilful blindness" as to the age of the person being trafficked to 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 to a child, 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 to a child if you find that, given the circumstances, [he/she] would have suspected that the person to whom [he/she] was [insert relevant act of trafficking] was under 18, and deliberately failed to make further inquiries for fear of learning the truth. That is, [he/she] was aware that there was a risk that [he/she] was trafficking to a child, 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 [he/she] was trafficking to a child, [he/she] nevertheless intended to do so.
It is for you to determine whether to draw this inference, from all of the facts and circumstances of the case. Once again, though, 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 third element beyond reasonable doubt.
In this case, the prosecution submitted that you should infer that the accused intended to traffick to a child because [insert evidence capable of sustaining the inference].
If the accused denied having this intention because they did not know the child’s age, add the following section
The defence denied that NOA had an intention to traffick to a child, alleging that [he/she] did not know, or was not aware of the likelihood, that it was a child [he/she] was [insert relevant act of trafficking] the [insert name of drug] to. [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 that it was a child to whom they were trafficking, and there is no other basis from which you can infer that the accused intended to traffick to a child, 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, whether the accused trafficked to a child, and whether the accused intended to traffick to a child. It is only if you are satisfied of both of these matters, beyond reasonable doubt, that this third element will be met.
 If it is alleged that the accused admitted having such an intention, this part of the charge will need to be modified accordingly.
 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;  VSCA 23.
Last updated: 30 August 2006