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

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When to Use This Charge

This charge may be used when the accused is charged with the following:

  1. Trafficking commercial quantities controlled drugs under s 302.2.
  2. Trafficking marketable quantities controlled drugs under s 302.3.

This charge is designed for use where it is alleged the accused trafficked a commercial or marketable quantity by selling a controlled drug. It must be adapted if the prosecution argues the accused trafficked a controlled drug in one of the other ways listed in 302.1.

The Elements

I must now direct you about the offence of trafficking a [commercial / marketable] quantity of a controlled drug.

To prove this crime, the prosecution must prove the following four elements beyond reasonable doubt:

One - the accused intentionally trafficked in a substance.

Two - the substance trafficked was a controlled drug.

Three – the accused was reckless as to the substance trafficked being a controlled drug.

Four – the accused trafficked a [commercial / marketable] quantity of the controlled drug.

I will now explain each of these elements in more detail.

Traffics

The first element that the prosecution must prove is that the accused intentionally trafficked in a substance.

The prosecution has argued that NOA trafficked by selling the substance. In order for this form of trafficking be made out, the prosecution must prove two matters beyond reasonable doubt:

First, the prosecution must prove the accused sold the substance. NOA will have sold the substance if the prosecution proves there was an exchange or agreement to sell. Money does not necessarily have to change hands but giving something away for free does not constitute selling.

Second, the prosecution must prove the accused intended to sell the substance. This means that the accused meant to sell the substance. For this element, you are not required to consider if the accused knew of the nature of the substance. That is the third element.

Intention is a state of mind. To determine the accused’s state of mind, the prosecution invites you to draw an inference as to the accused’s state of mind from certain facts. You will remember what I told you earlier about drawing inferences.[1]

[Set out the facts and discuss relevant evidence or arguments]

Controlled drug

The second element the prosecution must prove is that the substance trafficked was a controlled drug.

You have heard evidence from [identify relevant witness] that the substance that the accused is alleged to have sold was [identify relevant controlled drug]. I direct you as a matter of law that [identify relevant controlled drug] is a controlled drug.

The defence has argued that [identify relevant defence evidence and arguments regarding whether the substance is a controlled drug].

If you are not satisfied that the substance that the accused is alleged to have sold was [identify relevant controlled drug], then you must find the accused not guilty.

[If the substance is trafficked in a mixture, add the following shaded section].

You will remember the evidence that the substance that the accused is alleged to have sold was a mixture of [identify relevant controlled drug]and [identify other substance]. Provided you are satisfied that the substance contained [identify relevant controlled drug], then you may find this element proved.

Recklessness

Warning! As noted in Trafficking Controlled Drugs, there is very little guidance on the operation of this element. Judges are encouraged to discuss this part of the direction with counsel and seek submissions.

The third element that the prosecution must prove is that the accused was reckless as to the substance trafficked being a controlled drug.

I have already directed you that, as a matter of law, [insert relevant substance] is a controlled drug.

This element looks at what NOA knew or believed about the substance s/he is alleged to have sold. The prosecution will prove this element if you are satisfied that NOA knew or believed that the substance was [insert relevant substance].

This element will also be established if the prosecution has proved that NOA was aware of a substantial risk that the substance was [insert relevant substance] and that in the circumstances as s/he knew them to be, it was unjustifiable to risk trafficking the substance. Whether taking such a risk is unjustifiable is a question of fact for you to determine.

[If it would be open to the jury to find that the accused knew, believed or was aware of a substantial risk that the substance was a different controlled drug, add the following shaded section]

A third way the prosecution can prove this element is to show that NOA knew, believed or was aware of a substantial risk that the substance was a different controlled drug, such as [insert any relevant examples]. This element is made out if you are satisfied NOA was reckless as to whether the substance was a controlled drug of any kind.

[Discuss relevant evidence or arguments]

Quantity

The fourth element that the prosecution must prove is that NOA trafficked a [commercial / marketable] quantity of a controlled drug.

I direct you as a matter of law that [specify relevant quantity] is a [commercial / marketable] quantity of [identify relevant controlled drug]. The prosecution do not have to prove that the accused knew of the weight of the substance, or knew that [specify relevant quantity] is a [commercial / marketable] quantity of [identify relevant controlled drug]. So, if you are satisfied that NOA trafficked [identify relevant quantity and controlled drug alleged], then you may find this element proved.

[If a number of parcels are trafficked on a single occasion, add the following shaded section]

You have heard evidence that the [identify relevant controlled drug] was contained in [identify number of parcels] separate parcels. If you are satisfied that all of these parcels were trafficked on the one occasion, then you can combine the weight of [identify relevant controlled drug] in each of these parcels, to determine whether NOA trafficked a [commercial / marketable] quantity of [identify relevant controlled drug].

[If the accused trafficked drugs at different times, add the following shaded section]

In this case, the prosecution alleges that NOA trafficked [identify relevant controlled drug] on [identify number of occasions] occasions. In determining whether NOA trafficked a [commercial / marketable] quantity, you may add together the quantities trafficked on these different occasions if you are satisfied the prosecution has proved two matters beyond reasonable doubt. First, that NOA trafficked [identify relevant controlled drug] on different occasions. This requires you to be satisfied that the first three elements have been proved beyond reasonable doubt by the prosecution in relation to each alleged occasion of trafficking. Second, that each of these proved trafficking occasions occurred within seven days of at least one other proved trafficking occasion.

I have given you a document, [identify relevant document] which lists the different times when NOA is alleged to have trafficked a controlled drug, and the quantity s/he is alleged to have trafficked. You will see that each of these occasions are no more than seven days apart. If the prosecution has proved that NOA trafficked a controlled drug on each occasion alleged, then you may add the quantity trafficked on each occasion together. However, if there is one or more occasion where you are not satisfied beyond reasonable doubt that NOA trafficked a controlled drug, you must strike those occasions from the list. You can then only add the quantities trafficked on the remaining occasions together where the remaining occasions occur within seven days of another offence, which you found proved. [Judges may wish to explain this point using an example from the case, based on the dates of trafficking and explain the consequences if the jury finds a particular occasion not proved].

[If the accused is alleged to be in a business of trafficking, add the following shaded section]

In this case, the prosecution alleged that NOA was involved in an organised commercial activity that involved repeated trafficking of controlled drugs. If you satisfied that NOA trafficked [identify relevant controlled drug] on multiple occasions as part this business, and that over the course of this business a [commercial / marketable] quantity was trafficked, you can find the accused guilty of trafficking a [commercial / marketable] quantity of a [insert relevant controlled drug]. To make this determination, you must be satisfied of two things. First you must be satisfied the accused was involved in an organised commercial activity that involved repeated trafficking controlled drugs. This requires you to be satisfied that the first three elements occurred on repeated occasions as part of this business. Second, you must be satisfied that a [commercial / marketable] quantity was trafficked over the course of the organised commercial activity.

[If the controlled drugs are in a mixture add the following shaded section]

You will remember you heard evidence that the [identify relevant controlled drug] was in a mixture with [identify other substance]. You will also remember that you heard evidence that the amount of [insert relevant controlled drug] in the mixture was [insert relevant quantity]. I direct you as a matter of law that this is a [commercial / marketable] of [identify relevant controlled drug]. If you are satisfied that the mixture contained this quantity of pure [identify relevant controlled drug], then you may find this element proved.

[If the prosecution relies on the proportions of multiple controlled drugs, add the following shaded section]

The prosecution has argued the accused trafficked more than one kind of controlled drug. Specifically: [identify relevant controlled drugs and quantities]. If you are satisfied that NOA trafficked these quantities of controlled drugs, then I direct you as a matter of law that these quantities, combined, form a [commercial / marketable] quantity and so you may find this element proved.

[If the accused had a mistaken belief about the quantity or identity of the drug, add the following shaded section]

The defence has argued that NOA was under a mistaken belief as to the [quantity of [insert relevant controlled drug]] / identity of[insert relevant controlled drug]] s/he was trafficking. The defence argues that NOA mistakenly believed that s/he was trafficking [insert relevant quantity] of [insert relevant controlled drug]. I direct you as a matter of law that, if NOA held this belief, and if you found all other elements proved, then NOA would be not guilty of trafficking a [commercial / marketable] quantity of a controlled drug, but would be guilty of the lesser offence of [trafficking a marketable quantity of a controlled drug / trafficking a controlled drug].

It is for the accused to prove that they were under this mistaken belief. This is one of the rare situations where the accused must prove an issue. Where the accused must prove a matter, a different standard applies compared to when the prosecution must prove a matter. That is, NOA does not need to prove matters "beyond reasonable doubt". Instead, the accused only needs to establish matters on what is called the "balance of probabilities". That is, such matters only need to be shown to be more likely than not. If you imagine a set a scales, with the evidence for the prosecution on one side and the evidence for the accused on the other, then the accused will prove this matter if the scales tip slightly in his/her favour. This is what the "balance of probabilities" means and you will understand that it is a much lower standard than "beyond reasonable doubt".

In determining whether NOA held this belief, you may consider the reasonableness of the belief and whether NOA turned his/her mind to the quantity of the controlled drug s/he was trafficking.

[Discuss relevant evidence or arguments].

So, if you find on the balance of probabilities, that the accused held a mistaken belief that s/he was trafficking [insert relevant quantity] of [insert relevant controlled drug], and you satisfied that the first three elements of the offence are proved, then you may find the defendant not guilty of trafficking a [commercial / marketable] quantity and guilty of the lesser offence of [trafficking a marketable quantity of a controlled drug / trafficking a controlled drug].

Trafficking marketable quantities of controlled drugs

[If the accused has been charged with trafficking a commercial quantity of a controlled drug and trafficking a marketable quantity is available as an alternative verdict, add the following shaded section]

I must also direct you about the crime of trafficking a marketable quantity of a controlled drug. This is an alternative to the offence of trafficking a commercial quantity of a controlled drug. This means you only need to deliver a verdict to this offence if you are not satisfied that the prosecution has proved the offence of trafficking a commercial quantity of [insert controlled drug], beyond reasonable doubt. If you are satisfied NOA is guilty of trafficking a commercial quantity of [insert controlled drug], then you do not need to deliver a verdict on this alternative.

The offence of trafficking a marketable quantity of [insert controlled drug] is very similar to the offence of trafficking a commercial quantity of a controlled drug. There is, however, one important difference: the prosecution need only prove that NOA trafficked a marketable quantity, as opposed to commercial quantity, of the controlled drug.

So the four elements of the offence of trafficking a marketable quantity of a controlled drug are:

One - the accused intentionally trafficked in a substance.

Two - the substance trafficked was a controlled drug.

Three – the accused was reckless as to the substance trafficked being a controlled drug.

Four – the accused trafficked a marketable quantity of the controlled drug

You will remember my earlier directions about the first three elements. The difference here lies in the fourth element - you need only be satisfied a marketable, rather than commercial, quantity was trafficked.

I direct you as a matter of law that [specify relevant quantity]is a marketable quantity of [identify relevant controlled drug]. If you are satisfied that NOA trafficked [identify relevant quantity and controlled drug alleged], then you may find this fourth element proved. If you are also satisfied that the prosecution has proved the first three elements, you may find NOA guilty of this alternative offence of trafficking a marketable quantity of a controlled drug.

[Discuss relevant evidence or arguments].

Trafficking controlled drugs

[If trafficking a controlled drug is available as an alternative verdict, add the following shaded section]

I must also direct you about the crime of trafficking a controlled drug. This is an alternative to the offence of trafficking a [commercial / marketable] quantity of a controlled drug. This means you only need to deliver a verdict to this offence if you are not satisfied that the prosecution has proved the offence of trafficking a [commercial / marketable] quantity of [insert controlled drug], beyond reasonable doubt. If you are satisfied NOA is guilty of trafficking a [commercial / marketable] quantity of [insert controlled drug], then you do not need to deliver a verdict on this alternative.

The offence of trafficking [insert controlled drug] is very similar to the offence of trafficking a [commercial / marketable] quantity of [insert controlled drug]. There is, however, one important difference: the prosecution does not need to prove that NOA trafficked a particular quantity of the controlled drug.

So the three elements of the offence of trafficking a controlled drugs are:

One - the accused intentionally trafficked in a substance.

Two - the substance trafficked was a controlled drug.

Three – the accused was reckless as to the substance trafficked being a controlled drug.

You will remember my earlier directions about these three elements.

[Discuss relevant evidence or arguments].

Defences

[Insert directions on any relevant ‘general’ defences under the Criminal Code]

[The following defences specific to Part 9.1 may also be relevant].

Reasonable belief that conduct was justified or excused by or under a law

[If the evidence raises the issue of whether the accused had a reasonable belief that the conduct was justified or excused by or under a law, add the following shaded section]

The defence has argued that NOA was under a mistaken but reasonable belief that his/her conduct was [justified / excused] under a law of [the Commonwealth / a State / a Territory].

[Insert evidence and argument relied on by the accused].

Before you may find NOA guilty of [this offence / these offences], the prosecution must prove, beyond reasonable doubt, the accused did not have such a mistaken belief. You must find the defendant not guilty if the prosecution has failed to prove this beyond reasonable doubt.

[Discuss relevant evidence or arguments].

Summary

To summarise before you can find NOA guilty of trafficking a [commercial / marketable] quantity of a controlled drug, the prosecution must prove to you beyond reasonable doubt:

One - the accused intentionally trafficked in a substance.

Two - the substance trafficked was a controlled drug.

Three – the accused was reckless as to the substance trafficked being a controlled drug.

Four – the accused trafficked a [commercial / marketable] quantity of the controlled drug

If you find that any of these elements have not been proven beyond reasonable doubt, then you must find NOA not guilty of trafficking a [commercial / marketable] quantity of a controlled drug.

Last updated: 1 July 2017

Notes

[1] Where the prosecution seeks to rely on Kural reasoning to establish the accused’s state of mind, this charge will need to be adapted to incorporate this. See Bahri Kural v R (1987) 162 CLR 502; Smith & Afford v R (2017) 259 CLR 291; [2017] HCA 19.

See Also

9.1.1 - Trafficking 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