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

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When to Use This Charge

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

  1. Importing or exporting border controlled drugs or border controlled plants under s 307.3
  2. Importing or exporting border controlled drugs or border controlled plants – with no defence of lack of commercial intent under s 307.4

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 border controlled drug.

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

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, did NOA know or believe that there was a real or 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 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.[2]

[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 border controlled drugs, and the defendant has argued a lack of 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 border control drug.

[Discuss relevant evidence or arguments]

However, you may still find the defendant guilty of the offence of importing a border controlled drug without commercial intent. This is an alternative to the offence of importing 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 border controlled drug. The only difference is that 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 imported 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 fail to prove this beyond reasonable doubt.

[Discuss relevant evidence or arguments].

Summary

To summarise before you can find NOA guilty of [importing a border controlled drug/importing a border controlled drug with no defence of lack of commercial intent], 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.

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 border controlled drug / importing a border controlled drug with no defence of lack of commercial intent].

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

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

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

9.1.2.4 – Checklist: Importing Border Controlled Drugs