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9.1.1 - Trafficking Controlled Drugs

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Trafficking Offence Provisions

  1. Division 302 of the Criminal Code (Cth) establishes three trafficking offences:
  2. For information on importation or exportation of controlled drugs, see Importing / Exporting Border Controlled Drugs and Plants.
  3. Unless stated otherwise, all references in this topic are to sections of the Criminal Code.

    Relationship with State Legislation

  4. Trafficking offences also exist under the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’). For detail on these offences see Trafficking in a Drug of Dependence.
  5. State and Territory law operates concurrently with Division 302 (s 300.4; Buckman v R [2013] NSWCCA 258; see generally Momcilovic v R (2011) 245 CLR 1).

    Commencement Information and Amendments

  6. These three trafficking offences were inserted into the Criminal Code by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). Each of the provisions commenced operation 6 December 2005.
  7. Commencing 20 February 2010, s 302.6(a) was amended to provide that a purchaser of a serious drug is not liable as a joint offender under s 11.2A (Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) s 3 sch 4 item 12).
  8. Commencing 28 May 2013, the following amendments relating to Division 302 came into force:

    Overview of Elements

  9. For all offences under Division 302, the following elements must be proved beyond reasonable doubt:
  10. Where the accused has been charged with trafficking a commercial or marketable quantity, the prosecution must also prove that:
  11. Absolute liability applies to these quantity requirements (ss 302.2(3), 302.3(3)). However, there is a partial defence where the accused makes a mistake as to the quantity of controlled drug they are trafficking (see below [92]-[97]).

    The person ‘traffics’ in a substance and does so ‘intentionally’

  12. A person ‘traffics’ a substance if they do any of the following:
    1. Sell the substance;
    2. Prepare the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it;
    3. Transport the substance with the intention of selling any of it or believing that another person intends to sell any of it;
    4. Guard or conceal the substance with the intention of selling any of it or assisting another person to sell any of it; or
    5. Possess the substance with the intention of selling any of it (s 302.1(1)(a)-(e)).
  13. This definition is exhaustive and excludes the common law meaning of ‘trafficks’ (Pantazis v The Queen (2012) 268 FLR 121).
  14. Giretti trafficking cannot be used to establish trafficking under Division 302. This is because the conceptual basis of Giretti trafficking is that the definition of ‘traffick’ in the Drugs Act is inclusive (Pantazis v The Queen (2012) 268 FLR 121). The definition of ‘traffics’ under the Criminal Code focuses on ‘specific finite acts’ whereas ‘trafficks’ in the ordinary sense and in the Drugs Act encompasses continuous activity (Pantazis v The Queen (2012) 268 FLR 121; see also Trafficking in a Drug of Dependence).

    A. Sells the substance

  15. ‘Sell’ includes:
  16. In contrast to the definition of ‘trafficks’ under the Drugs Act, the Criminal Code definition of ‘sell’ does not include ‘offer for sale’ (Pantazis v The Queen (2012) 268 FLR 121).
  17. As the terms ‘barter’ and ‘exchange’ suggest an element of trade for value, ‘traffics’ does not include ‘gratuitous supply’. The Criminal Code treats gratuitous supply, and possession with intent to gratuitously supply, as an offence of possession (Buckman v the Queen (2013) 280 FLR 219).
  18. In addition to the physical act of selling a substance, an accused must ‘intend’ to sell the substance (s 5.6). A person intends to engage in conduct if he or she means to engage in that conduct (s 5.2). Therefore the accused must have ‘meant’ to sell the substance.
  19. Under the common law, agreeing to sell requires the prosecution to prove the defendant:
    1. Made a genuine agreement to sell a controlled drug to another person;
    2. Intended to make the agreement; and
    3. Intended the agreement or offer to be regarded as genuine by the person to whom it is made (see R v Peirce [1996] 2 VR 215; Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA); see also Trafficking in a Drug of Dependence).

    B. Prepare the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it

  20. ‘Preparing a substance for supply’ includes:
    1. Packaging the substance; or
    2. Separating the substance into discrete units (s 302.1(2)).
  21. ‘Supply’ includes:
    1. Supply, whether or not by way of sale;
    2. Agreeing to supply (s 300.2).
  22. Two fault elements are required to make out this form of trafficking.
  23. First, the accused must ‘intend’ to prepare the substance for supply. Therefore, the prosecution must prove accused ‘meant’ to prepare the substance and ‘meant’ the preparation be for supply (ss 5.2, 5.6).
  24. Second, the accused must have had the intention of selling, or belief that another person intends to sell the substance prepared for supply (s 302.1(1)(b)).
  25. If the accused has prepared a ‘trafficable quantity’ of the substance for supply, then they are taken to have the necessary intention or belief concerning the sale of the substance (s 302.5(1)(a)).
  26. Schedule 3 of the Criminal Code Regulations 2002 (Cth) specifies the ‘trafficable quantity’ of each listed drug (s 301.12 item(1)(a)).
  27. For drug analogues of listed controlled drug, a trafficable quantity is the smallest trafficable quantity listed in Criminal Code Regulations 2005 (Cth) Schedule 3 for the drugs for which it is an analogue (s 301.12 item 2). In addition, where a drug is made a controlled drug by an Emergency Determination, the Minister may specify the trafficable quantity in the determination (s 301.12 item 1(b)).
  28. If a trafficable quantity is involved, then the legal onus is on the accused to prove, on the balance of probabilities, that he or she did not have the necessary intention or belief concerning the sale of the substance (ss 13.5, 302.5(2)).
  29. If a trafficable quantity is not involved, the onus is on the prosecution to prove, beyond reasonable doubt, that the accused did have the necessary intention or belief concerning the sale of the substance (ss 13.1(1), 13.2(1)).
  30. The prosecution need only prove the accused had a general intention to sell the drug in the future. It is not necessary to prove the accused had a specific buyer in mind (see Reardon v Baker [1987] VR 887).

    C. Transport the substance with the intention of selling any of it or believing that another person intends to sell any of it

  31. ‘Transports’ is defined as including delivery (s 300.2). Otherwise, ‘transports’ has its ordinary meaning.
  32. Two fault elements are required to make out this form of trafficking.
  33. First, the accused must ‘intend’ to transport the substance. Therefore, the prosecution must prove accused ‘meant’ to transport the substance (ss 5.2, 5.6).
  34. Second, the accused must have had the intention of selling any of the substance or belief that another person intended to sell any of it (s 302.1(1)(c)).
  35. If the accused has transported a ‘trafficable quantity’ of a substance, then the person is presumed to have the necessary intention or belief concerning the sale of the substance (s 302.5(1)(a)). See above [26]-[30] for details on the operation of this presumption.

    D. Guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it

  36. To ‘conceal’ a substance includes to conceal or disguise:
    1. the nature, source or location of the substance;
    2. any movement of the substance;
    3. the rights of any person with respect to the substance;
    4. the identity of any owner of the substance (s 300.2).
  37. Two fault elements are required to make out this form of trafficking.
  38. First, the accused must ‘intend’ to guard or conceal the substance. Therefore, the prosecution must prove the accused ‘meant’ to guard or conceal the substance (ss 5.2, 5.6).
  39. Second, the accused must have had the intention of selling any of the substance or assisting another person to sell any of it (s 302.1(1)(d)).
  40. If the accused has guarded or concealed a ‘trafficable quantity’ of a substance, then they are presumed to have the necessary intention or belief concerning the sale of the substance (s 302.5(1)(a)). See above [26]-[30] for details on the operation of this presumption.

    E. Possesses the substance with the intention of selling any of it

  41. ‘Possession’ is defined in the Criminal Code to include the following:
    1. Receiving or obtaining possession of the substance;
    2. Having control over the disposition of the substance (whether or not the thing is in the custody of the person);
    3. Having joint possession of the substance (s 300.2).
  42. At common law, a person has in their possession whatever is, to their knowledge, physically in their custody or under their physical control (see DPP v Brooks [1974] AC 862, 866; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185). Custody for any length of time is sufficient (R v Boyce (1976) 15 SASR 40).
  43. Providing the jury with an extensive definition of the concept of possession at common law is not always necessary. The jury should be told only so much of the law as is necessary, having regard to the issues at trial (see R v Clarke and Johnstone [1986] VR 643; R v Mateiasevici [1999] 3 VR 185; R v Bandiera and Licastro [1999] 3 VR 103; R v Tran [2007] VSCA 19).
  44. The burden of proving possession rests upon the prosecution (see Momcilovic v R (2011) 245 CLR 1).
  45. Two fault elements are required to make out this form of trafficking.
  46. First, the accused must ‘intend’ to possess the substance. Therefore, the prosecution must prove the accused ‘meant’ to possess the substance (ss 5.2, 5.6).
  47. For this element, the prosecution must prove that the accused knew that he or she has the substance under his/her custody or control. Knowledge of the nature of the substance is covered by the third element (see R v Boyesen [1982] AC 768; Campbell v R (2008) 73 NSWLR 272).
  48. This approach differs from the common law, the earlier provisions under the Customs Act 1901 (Cth) and the Victorian Drugs Act, which required awareness of the nature of the substance as part of proof of possession. Cases on other provisions and on the common law must therefore be read with caution (see below [57]-[58]; c.f. He Kaw Teh v R (1985) 157 CLR 523; Momcilovic v R 245 CLR 1; R v Mario [1989] VR 281).
  49. Second, the accused must have possessed the substance with the intention of selling any of the substance (s 302.1(1)(e)).
  50. If the accused possessed a ‘trafficable quantity’ of a substance, then the person is presumed to have the necessary intention or belief concerning the sale of the substance (s 302.5(1)(a)). See above [26]-[30] for details on the operation of this presumption.

    The substance is a ‘controlled drug’

  51. A controlled drug is defined exhaustively as a substance (other than a growing plant) which is either:
    1. Listed by a regulation as a controlled drug;
    2. A drug analogue of a listed controlled drug; or
    3. Determined by the Minister as a controlled drug under s 301.13 (s 301.1(1)).

    A. Listed by a regulation as a controlled drug

  52. A ‘listed’ controlled drug is one listed by a regulation made for the purposes of s 301.1(1)(a) (s 300.2).
  53. The current ‘listed’ controlled drugs for the purposes of s 301.1(1)(a) are found in the Criminal Code Regulations 2002 (Cth) Schedule 3 column 1 (Criminal Code Regulations 2002 (Cth) r 5A). This Schedule commenced operation 28 May 2013.

    B. A ‘drug analogue’ of a ‘listed’ a controlled drug

  54. Drug analogues of listed controlled drugs are defined in the same manner as drug analogues of listed border controlled drugs (see Importing/Exporting Border Controlled Drugs and Plants, [44]-[45]).

    C. Determined by the Minister as a controlled drug

  55. The Minister may determine that a substance is a controlled drug via an Emergency Determination (s 301.13(1)(a)).1
  56. The process, effect and conditions of an Emergency Determinations of controlled drugs are the same as for Emergency Determinations of border controlled drugs and border controlled plants (see Importing/Exporting Border Controlled Drugs and Plants, [41]-[43]).

    The person was reckless as to the substance being a controlled drug

  57. The prosecution must prove that the accused was reckless as to the substance being a controlled drug (ss 302.2(2), 302.3(2), 302.4(2)).
  58. See Importing/Exporting Border Controlled Drugs and Plants, [46]-[54] for information on this element. As noted, there is limited caselaw on the operation of this element and judges should seek submissions from parties in cases where the element is in issue.

    Commercial or Marketable Quantity

  59. Where a person is prosecuted under ss 302.2 or 302.3 with trafficking a commercial or marketable quantity, the prosecution must prove that the quantity trafficked is a commercial or marketable quantity (ss 302.2(1)(c), 302.3(1)(c)).
  60. For controlled drugs, commercial and marketable quantity are defined under ss 301.10 and 301.11 (see Importing/Exporting Border Controlled Drugs and Plants, [54]-[58]. For drug analogues of controlled drugs, the relevant quantities are defined under item 2 of ss 301.10, 301.11).
  61. The list of commercial quantities of controlled drugs is found in Criminal Code Regulations 2002 (Cth) Schedule 3 column 2 (Criminal Code Regulations 2002 (Cth) r 5A(2)).
  62. The list of marketable quantities of controlled drugs is found in Criminal Code Regulations 2002 (Cth) Schedule 3 column 3 (Criminal Code Regulations 2002 (Cth) r 5A(3)).
  63. For guidance as to how to determine quantity in specific circumstances, see below [65]-[82].

    Fault element as to quantity

  64. While absolute liability applies to the quantity requirements (ss 302.2(3), 302.3(3)), s 313.4 creates a partial defence in relation to mistake as to quantity (see below [92]-[97]).

    Provisions Relevant to Determining Quantity

  65. The following provisions may be relevant in determining if the quantity requirements are satisfied:

    A. Combining quantities of drugs

  66. If on the same occasion, a person traffics in different parcels of controlled drugs, the person may be charged with a single offence against Part 9.1 in respect of all or any of those different parcels (s 311.1(1)(a)).
  67. See Importing/Exporting Border Controlled Drugs and Plants, [62]-[65].

    B. Combining parcels from multiple offences

  68. The prosecution may prove a Division 302 trafficking offence by proving:
    1. The defendant committed offences against Division 302 on different occasions;
    2. Each offence was committed within 7 days from another offence; and
    3. In total, the relevant quantity of a controlled drug or combination of drugs was trafficked during the commission of the offences (s 311.8).
  69. For general rules on combining parcels from multiple offences see Importing/Exporting Border Controlled Drugs and Plants, [66]-[69].
  70. This provision differs from Giretti trafficking under the Victorian Drugs Act. Instead of allowing a charge based on a course of conduct, s 311.8 requires proof multiple offences against Division 302. This provision provides a narrower basis for aggregating quantities than allowed under Victorian law where trafficking is alleged on a Giretti basis, as each offence must be separately proved (Pantazis v The Queen (2012) 268 FLR 121).
  71. Where different kinds of controlled drug are trafficked, see below [80]-[82].

    C. Combining quantities from organised commercial activities

  72. A commercial or marketable quantity can be made out if the prosecution proves:
    1. The defendant was engaged in an organised commercial activity that involved repeated trafficking in controlled drugs, and
    2. The relevant quantity of a controlled drug or combination of drugs was trafficked in the course of that activity (s 311.2(1)).
  73. The prosecution does not need to specify the exact dates of trafficking or quantity of drug trafficked on each occasion (s 311.2(2)).
  74. Where the prosecution seeks to rely on this provision to aggregate quantities, the presumption that a person intends to sell or intends another to sell a quantity over a trafficable quantity does not apply. The prosecution must actually prove that the defendant was involved in the organised commercial activity and had the requisite commercial intention (s 311.2(3); compare s 302.5)
  75. Unlike s 311.8, which allows prosecutors to combine parcels of drugs trafficked on separate occasions, there is no time restriction over which the organised commercial activity takes place.
  76. Where different kinds of controlled drug are trafficked, see below [80]-[82] (s 311.2 Note 1).
  77. This provision only assists in proving the relevant quantity of controlled drug has been trafficked (Pantazis v The Queen (2012) 268 FLR 121). It therefore, differs from Giretti Trafficking under the Victorian Drugs Act (see above [70]).

    D. Calculating quantities of drugs in mixtures

  78. When a controlled drug is within a mixture, the prosecution must prove the mixture contains the relevant quantity of the controlled drug in pure form (s 312.1(1)(a)).2
  79. This approach differs from the approach under the Victorian Drugs Act where minimum quantities of mixtures are provided in addition to minimum quantities of pure drugs.

    E. Calculating quantities where different kinds of drugs are involved

  80. If the accused is charged with a single offence involving trafficking in more than one kind of controlled drug, then the quantity of drugs is a trafficable, marketable or commercial quantity if the sum of the requisite fractions of the trafficable, marketable or commercial quantity of each of those drugs is equal to or greater than one (s 312.2(2)).
  81. See Importing/Exporting Border Controlled Drugs and Plants, [80] for an example of the calculation of the requite fraction.
  82. When a controlled drug is within a mixture of substances, the requisite fraction is calculated on the basis of the quantity of the controlled drug in pure form (s 312.2(4)(a)).3

    Defences

  83. Two defences under Division 313 apply to all trafficking offences in Division 302:
  84. The defendant bears the evidential burden of proof in relation to these defences (ss 13.3(3), 313.1 Note 1, 313.2 Note). To satisfy the burden the defendant must adduce or point to evidence that suggests a reasonable possibility that the conduct was justified or excused (for s 313.1) or they had a reasonable belief the conduct was justified or excused (for s 313.2) (s 13.3(6)).

    A. Conduct justified or excused by or under a law

  85. The trafficking offences do not apply in relation to conduct engaged in a State or Territory and justified or excused by or under a law of the State or Territory (s 313.1).
  86. In addition, no criminal responsibility exists if the person’s conduct was justified or excused by or under another Commonwealth law (s 313.1 Note 2).

    B. Reasonable belief that conduct justified or excused by or under a law

  87. No criminal responsibility exists if:
    1. At the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
    2. Had the conduct been so justified or excused – the conduct would not have constituted the offence (s 313.2).
  88. See Importing/Exporting of Border Controlled Drugs and Plants, [90]-[95].

    Alternative Verdicts

  89. Three alternative verdicts under Division 313 apply to all trafficking offences in Division 302:

    A. Proof of alternative offence

  90. If the jury is not satisfied that the defendant is guilty of the alleged offence but is satisfied, beyond reasonable doubt, that the defendant is guilty of another offence against Part 9.1, they may find the defendant not guilty of the alleged offence but guilty of the other offence (s 313.3).
  91. See Importing/Exporting of Border Controlled Drugs and Plants, [96]-[97].

    B. Mistake as to quantity of the drug

  92. A partial defence in relation to mistake of quantity is available where the defendant is charged with an offence involving a commercial or marketable quantity of a controlled drug and:
    1. The defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the quantity of the drug;
    2. If the mistaken belief had been correct, the defendant would have been guilty of another offence against Part 9.1; and
    3. The maximum penalty for the other offence is less than the maximum penalty for the alleged offence (s 313.4(2)(a)-(c)).
  93. If the three conditions set out in s 313.4(2)(a)-(c) are met, the jury may find the defendant not guilty of the alleged offence (s 313.4(2)(d)) and guilty of the other offence (s 313.3(2)(e)).
  94. The defendant bears a legal burden in relation to the mistaken belief element under s 313.4(2)(a) (s 13.4(b)). The defendant must prove these matters on the balance of probabilities (s 13.5).
  95. The effect of this defence is to allow the accused to be convicted of a less serious offence where they intended to traffic in a lesser quantity (Luong v DPP (Cth) (2013) 46 VR 780).
  96. There is no requirement that the belief be reasonable (see s 313.4). However, whether the belief was reasonable will likely be relevant to determining whether the accused actually held the belief (see, in the context of sexual offences, DPP v Morgan [1976] AC 182; R v Ev Costa 2/4/1997 CA Vic; R v Saragozza [1984] VR 187; R v Zilm (2006) 14 VR 11).
  97. There is no specific requirement that the defendant considered the exact quantity of drug they were trafficking (see generally s 313.4). However, it is necessary for the defendant to show they actually formed a belief as to quantity (s 313.4(2)(a)).

    C. Mistake as to identity of the drug

  98. This defence applies if:
    1. The defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the identity of the drug;
    2. If the mistaken belief had been correct, the defendant would have been guilty of another offence against Part 9.1; and
    3. The maximum penalty for the other offence is less than the maximum penalty for the alleged offence (s 313.5(2)(a)-(c)).
  99. Where this defence is relied upon, the court will need to consider whether the quantity of drug the accused believed that he or she was trafficking, rather than the drug they were actually trafficking, was commercial or marketable.
  100. For example, if a person is accused of trafficking 11kg of Oxycodone (commercial quantity of 5kg), but believed that he was trafficking in Opium (commercial quantity of 20kg), then if the accused can prove that belief on the balance of probabilities, then the jury may find the accused not guilty of trafficking a commercial quantity of a controlled drug and guilty of trafficking a marketable quantity of controlled drug (Opium - marketable quantity of 10kg).
  101. The partial defences of mistake of quantity and mistake of identity may both operate where a person believes that they are trafficking in a reduced quantity of a different drug to that which is proved. If established on the balance of probabilities, then the accused may be convicted on the basis of their mistaken belief(s).

[1] This system of emergency determination replaces the previous system of listing additional drugs as controlled drugs temporarily through interim regulations (which were for a maximum period 12 months) or urgently through emergency determinations (which for a maximum period of 56 days). These changes came into force 28 May 2013 under the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012 (Cth).

[2] Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).

[3] Section 312.2(4)(b) purports to provide another means by which the requisite fraction can be calculated, however it refers to division 314 which is now repealed (effective 28 May 2013).

Last updated: 23 March 2015

In This Chapter

9.1.1.1 - Charge: Trafficking Marketable or Commercial Quantities of Controlled Drugs

9.1.1.2 - Checklist: Trafficking Marketable or Commercial Quantities of Controlled Drugs

9.1.1.3 - Charge: Trafficking Controlled Drugs

9.1.1.4 - Checklist: Trafficking Controlled Drugs