7.6.1.1 - Charge: Trafficking a Commercial / Large Commercial Quantity of a Drug of Dependence - Giretti trafficking

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This charge is designed for use where the prosecution alleges that the accused trafficked in a commercial or large commercial quantity of a drug of dependence by carrying on a business of trafficking (Giretti trafficking).

If the accused is not charged with Giretti trafficking, or if the accused is not charged with trafficking in a commercial or large commercial quantity of a drug of dependence on a Giretti basis, use Charge: Trafficking in a Drug of Dependence.

If the accused is charged with trafficking on a Giretti basis to a child, this charge must be modified.

I must now direct you about the crime of trafficking in not less than a [commercial / large commercial] quantity of a drug of dependence. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - That the accused carried on a business of trafficking.

Two - That the accused trafficked in not less than a [commercial / large commercial] quantity of a drug of dependence.

Three - That the accused intended to traffick in not less than a [commercial/ large commercial] quantity of a drug of dependence.

I will now explain these elements in more detail.

Trafficking

The first element relates to what the accused did. S/he must have carried on a business of trafficking.

This requires the prosecution to prove, beyond reasonable doubt, that the accused was involved in a continuing trade or business of dealing in drugs over a period of time, or was involved in getting drugs from source to consumer on a regular basis for money or other payment.

In this case it is alleged that the accused conducted this business between [insert dates]. The business is alleged to have involved [insert acts of trafficking and name of drug].

The prosecution does not have to prove that the accused set up a formal “business” structure, or had an agreement with anyone to traffick in drugs. The word “business” is used to mean that the accused had conducted an ongoing activity, over a period of time, involving commercial dealings in drugs.

The prosecution must prove more than isolated acts of trafficking during this period of time. Proof that the accused sold drugs on two or three isolated occasions is not enough to prove that the accused carried on a trafficking business. For this element to be met, you must be satisfied that the accused’s activities took place with some regularity and system so that they amounted to a “business” or “trade”.

In other words, the prosecution must prove that NOA carried on a trafficking business for a significant part of the period between [insert dates].

In this case, the prosecution submitted that you should draw this conclusion because [insert evidence capable of sustaining the inference]. The defence responded [insert any evidence and/or arguments].

It is for you to determine whether NOA was involved in a trade or business of dealing in drugs. It is only if you are satisfied, beyond reasonable doubt, that this was the case that this first element will be met.

To establish this element, you do not all need to agree about which particular acts of trafficking the prosecution has proved – as long as you all agree that the accused conducted a business of trafficking.

Quantity of a Drug of Dependence

The second element also looks at the accused’s conduct. The prosecution must prove beyond reasonable doubt is that the accused trafficked in not less than a [commercial / large commercial] quantity of a drug of dependence.

The law says that [insert relevant drug] is a drug of dependence and a [commercial / large commercial] quantity of [insert relevant drug] is [insert commercial / large commercial threshold].

In other words, the prosecution must prove that NOA carried on a business of trafficking which trafficked in at least [insert commercial / large commercial threshold] of [insert relevant drug].

It is not necessary for the prosecution to establish the precise amount of drugs trafficked by the accused. They only need to establish that the amount trafficked was at least [insert relevant weight or number of plants of relevant substance].

[If the prosecution relies on cuttings, add the following shaded section.]

In this case there has been a dispute about the number of plants trafficked by the accused. According to the law, a plant includes a cutting of a plant, whether or not it has roots. Even if it dies before becoming usable, it should still be counted as a “plant”.[1]

[If the prosecution relies on a mixture quantity specified in column 2A of Part 3 of Schedule 11, add the following shaded section.]

You have heard evidence that [insert name of drug] was mixed with another substance. This element will be proved if the weight of the mixed substance was at least [insert commercial / large commercial threshold]. The purity of the mixture and the weight of the pure quantity of [insert name of drug] is not relevant to whether this element is proved.

[Summarise relevant evidence and arguments]

Intention to Traffick in a Commercial Quantity / Large Commercial Quantity

The third element that the prosecution must prove beyond reasonable doubt is that the accused intended to traffick in not less than a [commercial/ large commercial] quantity of a drug of dependence. This element looks at the accused’s state of mind.

As I have explained, the law states that [insert commercial / large commercial threshold] of [insert relevant drug of dependence] is a [commercial / large commercial] quantity of [insert relevant drug of dependence].

The law also states that for this element, the prosecution must prove that the accused had this intention before s/he trafficked in at least a [commercial / large commercial] quantity of a drug of dependence, and that this intention continued while NOA trafficked the [insert drug of dependence].

In determining whether or not the accused intended to traffick in at least a [commercial / large commercial] quantity of [insert relevant drug of dependence], you will need to decide if you can draw a conclusion from all of the evidence in the case that s/he had this intention.[2] You will remember what I have told you about drawing conclusions.

There are two ways this element can be established.

First, if you are satisfied that NOA knew or believed that s/he would be trafficking in at least a [commercial / large commercial] quantity of [insert relevant drug of dependence], you could use that to conclude that NOA intended to traffick at least a [commercial / large commercial] quantity of a drug of dependence.

Secondly, if you are satisfied that NOA knew or believed that there was a significant or real chance that s/he would traffick in at least a [commercial / large commercial] quantity of [name of drug], then you also use that to conclude that NOA intended to traffick at least a [commercial / large commercial] quantity.

[If ‘wilful blindness’ as to the relevant threshold arises as an issue, consider the shaded section].

[“Wilful blindness” may be relevant if there is evidence that the accused realised there was a risk that s/he would traffick more than the relevant threshold, and deliberately chose to close his/her eyes to that risk so that s/he could later deny knowledge and avoid liability.

Cases of “wilful blindness” will be rare, and judges should be cautious before charging the jury about this possibility: R v Garlick (No.2) (2007) 15 VR 388.]

You could also draw a conclusion that NOA intended to traffick in at least a [commercial/ large commercial] quantity if you find that, in the circumstances, s/he suspected s/he was going to traffick at least the [weight of drugs/number of plants] that constitutes a [commercial / large commercial] quantity, and chose not to make further inquiries for fear of learning the truth. That is, s/he was aware that there was a risk that s/he would traffick in at least a [commercial / large commercial] quantity, but deliberately closed [his/her] eyes to that risk to avoid possible liability. In such a situation, you may conclude that although NOA did not positively know that s/he was going to traffick in at least a [commercial/ large commercial] [weight of drugs/number of plants], s/he still intended to traffick in such a [number/weight].

I remind you that you must not draw a conclusion unless you are satisfied that it is the only conclusion that is reasonably open in the circumstances. If another reasonable explanation is available, then the prosecution will not have proved this third element beyond reasonable doubt.

In this case, the prosecution submitted that the accused intended to traffick in at least a [commercial/ large commercial] quantity of a drug of dependence because [insert evidence capable of sustaining the inference].

[Summarise relevant prosecution and defence evidence and arguments].

[Insert any other defence evidence or arguments.]

So you must decide, based on all of the evidence, whether the prosecution has proved, beyond reasonable doubt, that NOA intended to traffick in at least a [commercial / large commercial] quantity of a drug of dependence over the period of trafficking.

Authorisation /License

[If it is alleged that the accused was authorised or licensed to traffick in a drug of dependence, insert Additional Direction: Authorisation and Licensing here.]

Summary

To summarise, before you can find NOA guilty of trafficking in a drug of dependence, the prosecution must prove beyond reasonable doubt:

One - That s/he carried on a business of trafficking.

Two - That s/he carried on a business of trafficking in not less than a commercial / large commercial quantity of a drug of dependence.

Three - That s/he intended to traffick in not less than a commercial/ large commercial quantity of a drug of dependence.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of trafficking in a drug of dependence in not less than a [commercial / large commercial] quantity.

Last updated: 18 May 2016

Notes

[1] This section of the charge will need to be modified if the offence was alleged to have been committed prior to the commencement of s8 of the Drugs, Poisons and Controlled Substances (Amendment) Act 2006 on 1 May 2007. See Trafficking in a Drug of Dependence for further information.

[2] If it is alleged that the accused admitted having such an intention, this part of the charge will need to be modified accordingly.

See Also

7.6.1 - Trafficking in a Drug of Dependence

7.6.1.2 - Charge: Trafficking in a Drug of Dependence

7.6.1.3 - Additional Direction: Selling, Exchanging or Manufacturing a Drug of Dependence

7.6.1.4 - Checklist: Trafficking by Sale, Exchange or Manufacture

7.6.1.5 - Checklist: Trafficking by Sale, Exchange or Manufacture (Commercial or Large Commercial quantity)

7.6.1.6 - Additional Direction: Offering or Agreeing to Sell a Drug of Dependence

7.6.1.7 - Checklist: Trafficking by Offering or Agreeing to Sell

7.6.1.8 - Checklist: Trafficking by Offering or Agreeing to Sell (Commercial or Large Commercial quantity)

7.6.1.9 - Additional Direction: Preparing a Drug of Dependence for Trafficking

7.6.1.10 - Checklist: Trafficking by Preparing a Drug for Trafficking

7.6.1.11 - Checklist: Trafficking by Preparing a Drug for Trafficking (Commercial or Large Commercial quantity)

7.6.1.12 - Additional Direction: Possessing a Drug of Dependence for Sale

7.6.1.13 - Checklist: Trafficking by Possession for Sale

7.6.1.14 - Checklist: Trafficking by Possession for Sale (Commercial or Large Commercial quantity)

7.6.1.15 - Additional Direction: Conducting a business of trafficking (Giretti trafficking)

7.6.1.16 - Additional Direction: Possession of a traffickable quantity

7.6.1.17 - Additional Direction: Commercial or Large Commercial Quantity

7.6.1.18 - Additional Direction: Trafficking to a Child

7.6.1.19 - Checklist: Trafficking to a Child (Sale or Exchange)

7.6.1.20 - Checklist: Trafficking to a Child (Offering or Agreeing to Sell)

7.6.1.21 - Additional Direction: Authorisation and Licensing