Previous Topic

Next Topic

Book Contents

Book Index

9.1.2.1 – Charge: Importing/Exporting Marketable or Commercial Quantities of Border Controlled Drugs and Border Controlled Plants

Click here to obtain a Word version of this document for adaptation

When to Use This Charge

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

  1. Importing or exporting commercial quantities of border controlled drugs or border controlled plants under s 307.1
  2. Importing or exporting marketable quantities of border controlled drugs or border controlled plants under s 307.2

This charge is designed for use where the accused is charged with importing a border controlled substance. It must be adapted if the accused is charged with exporting a border controlled substance.

This charge is designed for use where the border controlled substance is a border controlled drug. It must be adapted if the accused is charged with importing or exporting a border controlled plant.

The Elements

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

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

One - the accused imported a substance.

Two - the accused intended to import the substance.

Three – the substance imported was a border controlled drug.

Four – the accused was reckless as to the substance imported being a border controlled drug.

Five – the accused imported a [commercial/marketable] quantity of the border controlled drug.

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

Import

The first element the prosecution must prove is that the accused imported a substance.

An accused imports a substance if they have:

  1. Brought the substance into Australia; or
  2. Dealt with the substance in connection with its importation

[If the accused is alleged to have brought the substance into Australia, add the following shaded section]

The prosecution says that the accused brought the substance into Australia. In assessing whether this in fact occurred, you must only look at whether the accused has caused the substance to arrive in Australia to a point where it will remain in the country.

[If relevant on the facts, add the following darker shaded section]

This element is not proved where the accused only used or distributed the substance after it arrived in Australia.

[If the accused is alleged to have dealt with the substance in connection with its importation, add the following shaded section]

The prosecution says that the accused dealt with the substance in connection with its importation. To prove this element, the prosecution must establish the following two matters.

First, that the accused dealt with the substance. These dealings may take place before, during or after the substance is imported.

Second, that these dealings were in connection with the importation of the substance. Importation is an ongoing process, including but not limited to packaging the substance for importation, the transport of the substance to Australia and the transfer of imported goods into storage. However, you must be satisfied, as a matter of common sense, that the conduct is ‘in connection with’ and not too far removed from the importation.

[Discuss relevant evidence or arguments].

Intention

The second element the prosecution must prove is that the accused intended to import the substance.

This means that the accused meant to import the substance.

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.

[If the case concerns a substance contained within another object (a container), add the following shaded section. This direction should be adapted and included if the substance consists of or includes the substituted contents of a container]

As you have heard, the prosecution seeks to prove that NOA imported [identify substance] within [identify container]. To prove this element, the prosecution must prove that the accused meant to import the [identify substance]. An intent to import [identify container] is not sufficient.

There are two matters which might help you reach a conclusion that NOA meant to import [identify substance]. First, did NOA know that [identify substance] was in [identify container]? Second, was NOA aware that there was a significant chance that [identify substance] was in [identify container]?

If you answer ‘yes’ to either of these questions, that may help you draw the conclusion that NOA meant to import [identify substance]. Remember, you must not look at pieces of evidence in isolation. Instead, you must decide, based on the evidence you accept, whether the prosecution has proved that NOA meant to import [identify substance].

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

Border controlled drug/border controlled plant

The third element the prosecution must prove is that the substance imported was a border controlled drug.

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

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

If you are not satisfied that the substance was [identify relevant border controlled drug], then you must find the accused not guilty.

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

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

Recklessness

Warning! As noted in Importing/Exporting Border Controlled Drugs and Plants, 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 fourth element that the prosecution must prove is that the accused was reckless as to the substance imported being a border controlled drug.[1]

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 imported. The prosecution will prove this element if you are satisfied that NOA knew or believed that the substance imported 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 imported was [insert relevant substance] and that in the circumstances as s/he knew them to be, it was unjustifiable to risk importing 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 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 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.[2]

[Discuss relevant evidence or arguments]

Quantity

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

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

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

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

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

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

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

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

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

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

You will remember you heard evidence that the [identify relevant border controlled drug] was in a mixture with [identify other substance]. You will also remember that you heard evidence that the amount of [insert relevant border 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 border controlled drug]. If you are satisfied that the mixture contained this quantity of pure [identify relevant border controlled drug], then you may find this element proved.

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

The prosecution has argued the accused imported more than one kind of border controlled drug. Specifically: [identify relevant border controlled drugs and quantities]. If you are satisfied that NOA imported these quantities of border 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.

Importing marketable quantities of border controlled drugs

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

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

The offence of importing a marketable quantity of a border controlled drug is very similar to the offence of importing a commercial quantity of a border controlled drug. There is, however, one important difference: the prosecution need only prove that NOA imported a marketable quantity, as opposed to commercial quantity, of a border controlled drug.

So the five elements of importing marketable quantities of border controlled drugs are:

One - the accused imported a substance.

Two - the accused intended to import the substance.

Three – the substance imported was a border controlled drug.

Four – the accused was reckless as to the substance being a border controlled drug.

Five – the accused imported a marketable quantity.

You will remember my earlier directions about the first four elements. The difference here lies in the fifth element - you need only be satisfied that NOA imported a marketable, rather than commercial, quantity.

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

[Discuss relevant evidence or arguments].

Importing border controlled drugs

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

I must also direct you about the crime of importing a border controlled drug. This is an alternative to the offence of importing a [commercial/marketable] quantity of a border 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 importing a [commercial/marketable] quantity of a border controlled drug, beyond reasonable doubt. If you are satisfied NOA is guilty of importing a [commercial/marketable] quantity of a border controlled drug, then you do not need to deliver a verdict on this alternative.

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

So the four elements of importing border controlled drugs are:

One - the accused imported a substance.

Two - the accused intended to import the substance.

Three – the substance imported was a border controlled drug.

Four – the accused was reckless as to the substance being a border controlled drug.

You will remember my earlier directions about these four 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].

Lack of commercial intent

[If the accused has been charged with importing a marketable quantity of border controlled drugs, and the evidence raises the issue of whether the defendant lacked a commercial intent, add the following shaded section]

NOA has argued s/he neither intended to sell, nor believed that another person intended to sell any of the [identify relevant border control drug] or its products.

It is for the accused to prove that s/he did not intend to sell or believed that another person intended to sell any of the [identify relevant border controlled drug] or its products.

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".

So, if you are satisfied, on the balance of probabilities, that the accused did not intend to sell or believe that another person intended to sell any of the [insert name of border controlled drug] or its products, then you must find NOA not guilty of importing a marketable quantity a border control drug.

[Discuss relevant evidence or arguments]

However, you may still find the accused guilty of the offence of importing a border controlled drug without commercial intent. This is an alternative to the offence of importing a marketable quantity of a border controlled drug. This means you only need to deliver a verdict on this offence if you are satisfied, on the balance of probabilities, that the defendant neither intended nor believed that another person intended to sell any of the border controlled drug or its products. If you are not satisfied of this, then you do not need to deliver a verdict on this alternative.

The offence of importing a border controlled drug without commercial intent is very similar to the offence of importing a marketable quantity of a border controlled drug. There are, however, two important differences: there is no quantity requirement and it is not open to the accused to argue they did not intend to sell or believe another person intended to sell the border controlled drug or its products.

So, the four elements of importing border controlled drugs without commercial intent are:

One - the accused imported a substance.

Two - the accused intended to import the substance.

Three – the substance imported was a border controlled drug.

Four – the accused was reckless as to the substance being a border controlled drug.

You will remember my earlier directions about these four elements. If you are satisfied that the prosecution has proved these four elements, then you may find NOA guilty of this offence.

[Discuss relevant evidence or arguments].

Reasonable belief that conduct was excused by or under state 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 fails prove this beyond reasonable doubt.

[Discuss relevant evidence or arguments].

Summary

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

One - the accused imported a substance.

Two - the accused intended to import the substance.

Three – the substance imported was a border controlled drug.

Four – the accused was reckless as to the substance imported being a border controlled drug.

Five – the accused imported 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 importing a [commercial/marketable] quantity of a border controlled drug.

Notes

[1] If the prosecution cannot or does not particularise the border controlled drug in question, references to “[insert relevant substance]” (apart from in the second paragraph of this part of the charge) should be replaced with “a border controlled drug”. See Nelson v DPP (Cth) (2014) 44 VR 461; [2014] VSCA 217 and Weng v R [2013] VSCA 221.

[2] Judges should consider whether they need to explain the difference between a “substantial risk” and a “significant chance” to the jury. If such an explanation is considered necessary, judges should discuss their proposed formulation with counsel.

Last updated: 13 March 2020

See Also

9.1.2 – Importing/Exporting Border Controlled Drugs and Plants

9.1.2.2 – Checklist: Importing Marketable or Commercial Quantities of Border Controlled Drugs

9.1.2.3 - Charge: Importing/Exporting Border Controlled Drugs and Border Controlled Plants

9.1.2.4 – Checklist: Importing Border Controlled Drugs