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

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I must now direct you about the crime of cultivating a [commercial/ large commercial] quantity of a narcotic plant. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused intentionally cultivated a plant.

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

Three - the accused intentionally cultivated a [commercial/ large commercial] quantity of the 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].

Commercial or Large Commercial Quantity

The third element that the prosecution must prove beyond reasonable doubt is that the accused intentionally cultivated not less than a [commercial/ large commercial] quantity of plants.

There are two parts to this element. The prosecution must prove that the accused cultivated not less than a [commercial/ large commercial quantity] of [insert name of plant]. They must also prove that the accused intended to cultivate not less than a [commercial/ large commercial] quantity of the plant in question.

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

It is not necessary for the prosecution to establish the precise [number/weight] of plants cultivated by the accused for this part of the element to be met. They only need to establish that the amount cultivated was not less than the amount specified by the law.

[If the relevant quantity is measured by weight, add the following shaded section]

In calculating the weight, you should use the weight of the plants as you determine it to have been at the time the offence was committed, rather than what it would have been when dried or ready for consumption.

[If there is a dispute about whether a cutting is a "plant", add the following shaded section]

In this case there has been a dispute about the number of plants cultivated by the accused, and in particular whether cuttings should be treated as a part of the plant they were cut from, or as a separate "plant". According to the law, a cutting becomes a separate plant when it develops a root. It does not need to be a root system, nor does it need to live. Even if it dies before becoming usable, it should still be counted as a "plant" if it developed a root.[2]

 

Intention to cultivate a commercial/large commercial quantity

For this third element to be satisfied, the prosecution must also prove, beyond reasonable doubt, that the accused intended to cultivate not less than a [commercial/ large commercial] quantity of plants. That is, s/he deliberately cultivated not less than [insert relevant weight or number] of plants.

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

[If the accused denied knowing that the plants cultivated were narcotic plants, add the following shaded section]

It is also not necessary for the accused to have intended to cultivate that [number/weight] of [insert name of drug]. This part of the third element will be satisfied as long as the accused intended to cultivate a [commercial/ large commercial] [number/weight] of the plants allegedly cultivated at [insert location] – whether s/he believed those plants were [insert name of drug] or something else.

In determining whether or not the accused intended to cultivate not less than [insert relevant number or weight] of plants, you will need to decide if you can draw an inference from all of the evidence in the case that s/he had this intention.[3] You will remember what I have told you about inferences.

You may be able to draw this inference if you find that the accused knew or believed that s/he was cultivating not less than that [number/weight] of plants.

However, you do not need to find that the accused actually knew s/he was cultivating not less than a [commercial/ large commercial] [number/weight] of plants in order to draw this inference. Proof that the accused was aware that there was a significant and real chance that s/he was cultivating not less than a [commercial/ large commercial] [number/weight] of plants is also capable of sustaining the inference that s/he intended to cultivate that quantity of plants.

This means that, if you find that the accused was aware of the likelihood that s/he was cultivating not less than a [commercial/ large commercial] [number/weight], you may draw the inference that s/he had an intention to cultivate that quantity of plants. That is, you may infer that because the accused was aware that there was a significant and real chance that s/he was cultivating not less than a [commercial/ large commercial] [number/weight], s/he must have intended to cultivate that [number/weight].

[If "wilful blindness" as to the number/weight of plants 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 cultivating 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 cultivate a [commercial/ large commercial] quantity of plants if you find that, given the circumstances, s/he would have suspected that that [number/weight] of plants was being cultivated, 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 cultivating [insert relevant number or weight] 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 cultivating a [commercial/ large commercial] [number/weight] of plants, s/he nevertheless intended to cultivate such a [number/weight]. [4]

It is for you to determine whether to infer, from all of the facts and circumstances of the case, that the accused had this intention. However, 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 cultivate not less than a [commercial/large commercial] [number/weight] of plants because [insert evidence capable of sustaining the inference].

[If the accused denied intention to cultivate due to ignorance of the quantity being cultivated, consider the following shaded section]

The defence denied that NOA had an intention to cultivate not less than a [commercial/ large commercial] [number/weight] of plants, alleging that s/he did not know, or was not aware of the likelihood, that s/he was cultivating that [number/weight] of plants. [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 cultivating not less than a [commercial/ large commercial] [number/weight] of plants, and there is no other basis on which you can infer that the accused intended to cultivate that [number/weight], 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 cultivated not less than a [commercial/ large commercial] [number/weight] of narcotic plants, and whether the accused intended to cultivate that number/weight. It is only if you are satisfied of both of these matters, beyond reasonable doubt, that this third element will be met.

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 following shaded section]

Even if you find that the prosecution has proven all 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 all three 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 or licenced 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]. [5]

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 all 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 a [commercial/ large commercial] quantity of narcotic plants, the prosecution must prove to you beyond reasonable doubt:

One – that s/he intentionally cultivated a plant; and

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

Three - that s/he intentionally cultivated not less than a [commercial/ large commercial] quantity of that plant, being [insert relevant weight or number of plants].

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of cultivating a [commercial/ large commercial] quantity 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 s/he did not know or suspect, and could not reasonably have been expected to have known or suspected, that the plant s/he 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 s/he was [authorised/licensed] by law to cultivate a [commercial/ large commercial] quantity of 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] This section of the charge will need to be modified when the Drugs, Poisons and Controlled Substances (Amendment) Act 2006 commences operation (on 1 May 2007 unless proclaimed earlier), due to changes to the definition of "narcotic plant". See Cultivation of Narcotic Plants for further information.

[3] If it is alleged that the accused admitted having such an intention, this part of the charge will need to be modified accordingly.

[4] 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.

[5] 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

7.6.2.1 - Charge: 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)

7.6.2.5 - 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)