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9.1.1.3 - Charge: Trafficking Controlled Drugs

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When to Use This Charge

This charge may be used when the accused is charged with trafficking controlled drugs under s 302.4.

This charge is designed for use where it is alleged the accused trafficked 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 controlled drug.

To prove this crime, the prosecution must prove the following three 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.

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]

The prosecution will also prove this element if 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]

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 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.

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 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

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

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

9.1.1.4 - Checklist: Trafficking Controlled Drugs