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7.6.2.1 - Charge: Cultivation of Narcotic Plants

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I must now direct you about the crime of cultivating narcotic plants. To prove this crime, the prosecution must prove the following 2 elements beyond reasonable doubt:

One - the accused intentionally cultivated a plant.

Two - the plant cultivated by the accused was a narcotic plant.

I will now explain these elements in more detail.

Cultivation

The first element relates to what the accused did. S/he must have intentionally cultivated a plant.

The law defines cultivation to include [insert one or more of the following as relevant: planting, growing, tending, nurturing, harvesting, sowing the seeds of] a plant.[1]

In this case, the prosecution alleged that NOA cultivated a plant when [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 cultivated the relevant plants, and did so intentionally. It is only if you are satisfied of this, beyond reasonable doubt, that the first element will be met.

Narcotic Plant

The second element that the prosecution must prove beyond reasonable doubt is that the plants cultivated by the accused were narcotic plants.

The law says that [insert name of plant] is a narcotic plant. This element will therefore be satisfied if the prosecution has proved, beyond reasonable doubt, that NOA cultivated [insert name of plant].

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

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

In this case, the prosecution provided the following evidence that the plant allegedly cultivated by the accused was [insert name of plant 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 plant was a narcotic plant, namely [insert name of plant].

Lack of Knowledge that the Plant was a Narcotic Plant (Section 72C Defence)

[If the s72C defence of lack of knowledge is raised, add the shaded section]

Even if you find that the prosecution has proven both of these elements, NOA will not necessarily be guilty of this offence. This is because there are certain circumstances in which the law allows a person to commit acts that would otherwise be illegal. That is, [he/she] may have a defence to the charge of cultivation.

The law states that it is a defence to the charge of cultivation if a person can prove that [he/she] did not know or suspect, and could not reasonably have been expected to have known or suspected, that the plant [he/she] was cultivating was a narcotic plant.

There are two parts to this defence. First, the accused must prove that [he/she] did not know or suspect that the plant [he/she] was cultivating was a narcotic plant.

Second, the accused must also prove that [he/she] could not reasonably have been expected to have known or suspected that the plant [he/she] was cultivating was a narcotic plant. That is, in all of the circumstances in which it is alleged the cultivation took place, it would have been unreasonable to expect NOA to have known or suspected that the plants [he/she] was cultivating were narcotic plants.

It is the defence who must prove these two matters to you. However, unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – the defence only needs to prove these matters on what is called the "balance of probabilities". That is, the defence needs to prove that it is more probable than not that NOA did not know or suspect, and could not reasonably have been expected to have known or suspected, that the plant he/she was cultivating was a narcotic plant.

If you are satisfied by the defence that both of these matters have been proven on the balance of probabilities, then this defence will be successful and you must find NOA not guilty of cultivation. This will be the case even if you find that both elements of the offence have been met.

However, if the defence cannot prove, on the balance of probabilities, both that NOA did not know or suspect that the plant [he/she] was cultivating was a narcotic plant, and that [he/she] could not reasonably have been expected to have known or suspected that the plant [he/she] was cultivating was a narcotic plant, then this defence will fail. If you are also satisfied that each of the elements of the offence have been proven by the prosecution, beyond reasonable doubt, you should find NOA guilty of cultivation.

[Insert relevant evidence and/or arguments].

Authorisation /License

If the defence alleged that the accused was authorised to cultivate narcotic plants, add the following shaded section

A person who is [authorised/licensed] to cultivate narcotic plants will not be guilty of the offence of cultivation. In this case, the defence alleged that NOA was [authorised/licensed] to do so by virtue of [insert relevant evidence]. The prosecution disputed this, submitting that [insert relevant evidence].[2]

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – this is a matter which the defence must prove on the balance of probabilities. That is, you must be satisfied that it is more likely than not that NOA was [authorised/licensed] to cultivate narcotic plants. If the defence cannot prove this to you, and the prosecution has also proven both of the elements of the offence, then you should find the accused guilty of cultivation.

Summary

To summarise, before you can find NOA guilty of cultivation of narcotic plants, the prosecution must prove to you beyond reasonable doubt:

One – that [he/she] intentionally cultivated a plant; and

Two – that the plant that [he/she] allegedly cultivated was a narcotic plant, in this case [insert name of plant].

If you find that either of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of cultivation of narcotic plants.

[If the s72C defence of lack of knowledge has been raised, add the following shaded section]

However, even if you decide that these elements have been proven, NOA will not be guilty if the defence has proven, on the balance of probabilities, that he/she did not know or suspect, and could not reasonably have been expected to have known or suspected, that the plant he/she was cultivating was a narcotic plant.

[If the defence alleged that the accused was authorised to cultivate narcotic plants, add the following shaded section]

However, even if you decide that these elements have been proven, NOA will not be guilty if the defence has proven, on the balance of probabilities, that he/she was [authorised/licensed] by law to cultivate narcotic plants.

 

Notes

[1] The definition of cultivation is inclusive. If the specific act of cultivation alleged is not included in the definition above, the charge will need to be adapted accordingly. See Cultivation of Narcotic Plants for further guidance.

[2] Provisions concerning authorization and licensing are contained in Divisions 2 and 4 of the Drugs, Poisons and Controlled Substances Act 1981. See also ss118 and 119 of that Act for evidentiary provisions that may be of assistance in relation to such matters.

 

Last updated: 3 December 2012

See Also

7.6.2 - Cultivation of Narcotic Plants

7.6.2.2 - Checklist: Cultivation of Narcotic Plants (Simple)

7.6.2.3 - Checklist: Cultivation of Narcotic Plants (Section 72C Defence)

7.6.2.4 - Charge: Cultivation of a Commercial or Large Commercial Quantity of Narcotic Plants

7.6.2.5 - Checklist: Cultivation of a Commercial or Large Commercial Quantity of Narcotic Plants (Simple)

7.6.2.6 - Checklist: Cultivation of a Commercial or Large Commercial Quantity of Narcotic Plants (Section 72C Defence)