id stringlengths 8 15 | title stringlengths 9 156 | text stringlengths 10 2.72k | footnotes stringclasses 626
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8.14.1-c6-s1 | 8.14.1 Communication of arrest | ## Communication of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate to NOC that [he/she] was being arrested.
NOA must have done everything a reasonable person in the cir... | null |
8.14.1-c7-s1 | 8.14.1 Communication of reason for arrest | ## Communication of reason for arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate the reason for the arrest.
The accused did not need to use precise or technical language. ... | null |
8.14.1-c8-s1 | 8.14.1 Use of force not disproportionate to objective of arrest | ## Use of force not disproportionate to objective of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA used excessive force.
The right to use force for the purpose of an arrest only authorise... | null |
8.14.1-c9-s1 | 8.14.1 Relate law to the evidence | ## Relate law to the evidence
[*If not previously done, apply the law to the relevant evidence here.*]
## Summary
**To ****summarise**, for this element, the prosecution must prove that NOA was not exercising a lawful power of arrest. Based on the evidence, this means the prosecution must prove that NOA did not:
... | null |
8.14.2-c1-s1 | 8.14.2 Charge: Police Arrest Due to an Indictable Offence | # **8.14.2 Charge: Police Arrest Due to an Indictable Offence**
[*This charge is designed to be given as part of the “without lawful excuse” element in *7.4.17.1 Charge: False Imprisonment* or *7.4.8.1 Charge: Assault – Application of Force* where there is evidence from which a jury might infer that the accused was ac... | null |
8.14.2-c2-s1 | 8.14.2 Background | ## Background
As a free and democratic society, all people are protected from arbitrary arrest and detention. While the law gives police certain powers as part of their role, including the power to arrest a person, that power can only be exercised in limited and defined circumstances.
An arrest occurs when a police o... | null |
8.14.2-c3-s1 | 8.14.2 Components of lawful arrest | ## Components of lawful arrest
I’m now going to explain the components of a lawful arrest.
The accused will have lawfully arrested NOC if:
- NOA was a police officer;
- NOA believed on reasonable grounds that the other person has committed an [indictable offence in Victoria/offence elsewhere which would be an ind... | null |
8.14.2-c4-s1 | 8.14.2 Police Officer | ## Police Officer
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt that NOA is not a police officer.
[*Summarise** evidence and arguments relating to whether NOA was a police officer*]. | null |
8.14.2-c5-s1 | 8.14.2 Belief on reasonable grounds that complainant has committed an indictable offence | ## Belief on reasonable grounds that complainant has committed an indictable offence
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not believe on reasonable grounds that NOC committed an [ind... | null |
8.14.2-c5-s2 | 8.14.2 Belief on reasonable grounds that complainant has committed an indictable offence | [*Summarise** evidence and arguments about whether NOA believed on reasonable grounds that NOC committed an indictable offence in Victoria/an offence elsewhere that would be an indictable offence in Victoria*].
If you are satisfied NOA did not believe NOC had committed an [indictable offence in Victoria/offence elsewh... | null |
8.14.2-c6-s1 | 8.14.2 Communication of arrest | ## Communication of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate to NOC that [he/she] was being arrested.
NOA must have done everything a reasonable person in the cir... | null |
8.14.2-c7-s1 | 8.14.2 Communication of reason for arrest | ## Communication of reason for arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate the reason for the arrest.
The accused did not need to use precise or technical language. ... | null |
8.14.2-c8-s1 | 8.14.2 Use of force not disproportionate to objective of arrest | ## Use of force not disproportionate to objective of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA used excessive force.
The right to use force for the purpose of an arrest only authorise... | null |
8.14.2-c9-s1 | 8.14.2 Relate law to the evidence | ## Relate law to the evidence
[*If not previously done, apply the law to the relevant evidence here.*]
## Summary
**To ****summarise**, for this element, the prosecution must prove that NOA was not exercising a lawful power of arrest. Based on the evidence, this means the prosecution must prove that NOA:
[*Identi... | null |
8.14.3-c1-s1 | 8.14.3 Charge: Protective Services Officer Arrest Due to an Indictable Offence | # **8.14.3 Charge: Protective Services Officer Arrest Due to an Indictable Offence**
[*This charge is designed to be given as part of the “without lawful excuse” element in *7.4.17.1 Charge: False Imprisonment* or *7.4.8.1 Charge: Assault – Application of Force* where there is evidence from which a jury might infer th... | null |
8.14.3-c2-s1 | 8.14.3 Background | ## Background
As a free and democratic society, all people are protected from arbitrary arrest and detention. While the law gives protective services officers certain powers as part of their role, including the power to arrest a person, that power can only be exercised in limited and defined circumstances.
An arrest ... | null |
8.14.3-c3-s1 | 8.14.3 Components of lawful arrest | ## Components of lawful arrest
I’m now going to explain the components of a lawful arrest.
The accused will have lawfully arrested NOC if:
- NOA was a protective services officer;
- NOA delivered NOC to the custody of a police officer as soon as practicable;
- NOC was at or in the vicinity of a designated place;... | null |
8.14.3-c4-s1 | 8.14.3 Protective Services Officer | ## Protective Services Officer
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt that NOA is not a protective services officer.
[*Summarise** evidence and arguments relating to whether NOA was a protective se... | null |
8.14.3-c5-s1 | 8.14.3 Delivery to police officer | ## Delivery to police officer
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove that NOA did not deliver NOC to the custody of a police officer as soon as practicable.
[*Summarise** evidence and arguments about whether NOC was delive... | null |
8.14.3-c6-s1 | 8.14.3 Designated place | ## Designated place
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove that NOC was not at or in the vicinity of a “designated place”.
The law states that protective services officers can only exercise powers of arrest at certain desi... | null |
8.14.3-c7-s1 | 8.14.3 Belief on reasonable grounds that complainant has committed an indictable offence | ## Belief on reasonable grounds that complainant has committed an indictable offence
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not believe on reasonable grounds that NOC committed an [ind... | null |
8.14.3-c7-s2 | 8.14.3 Belief on reasonable grounds that complainant has committed an indictable offence | [*Summarise** evidence and arguments about whether NOA believed on reasonable grounds that NOC committed an indictable offence in Victoria/an offence elsewhere that would be an indictable offence in Victoria.*]
If you are satisfied NOA did not believe NOC had committed an [indictable offence in Victoria/offence elsewh... | null |
8.14.3-c8-s1 | 8.14.3 Communication of arrest | ## Communication of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate to NOC that [he/she] was being arrested.
NOA must have done everything a reasonable person in the cir... | null |
8.14.3-c9-s1 | 8.14.3 Communication of reason for arrest | ## Communication of reason for arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA did not communicate the reason for the arrest.
The accused did not need to use precise or technical language. ... | null |
8.14.3-c10-s1 | 8.14.3 Use of force not disproportionate to objective of arrest | ## Use of force not disproportionate to objective of arrest
The **[*****insert ******number*****] way** in which the prosecution can prove that NOA was not performing a lawful arrest is to prove, beyond reasonable doubt, that NOA used excessive force.
The right to use force for the purpose of an arrest only authorise... | null |
8.14.3-c11-s1 | 8.14.3 Relate law to the evidence | ## Relate law to the evidence
[*If not previously done, apply the law to the relevant evidence here.*]
## Summary
**To ****summarise**, for this element, the prosecution must prove that NOA was not exercising a lawful power of arrest. Based on the evidence, this means the prosecution must prove that NOA:
[*Identi... | null |
8.15-c1-s1 | 8.15 Police Search and Seizure Powers without a Warrant | # **8.15 Police Search and Seizure Powers without a Warrant**
## Introduction
1. Police officers’ powers of search and seizure in relation to persons, goods and land are circumscribed in the absence of an authorising warrant.
1. Interferences with one’s person or possessions are presumed to be a grave infringeme... | null |
8.15-c2-s1 | 8.15 Search and seizure incidental to an arrest | ## Search and seizure incidental to an arrest
1. Police officers are authorised to search persons and premises when executing an arrest and to seize material for evidentiary purposes (*Field v Sullivan* [1923] VLR 12; *Reeves (a Pseudonym) v The Queen* [2017] VSCA 291).
2. Articles may only be seized for evidentiar... | null |
8.15-c2-s2 | 8.15 Search and seizure incidental to an arrest | 6. A police officer has a common law duty to take reasonable measures to prevent a person in custody from harming themselves or others or destroying or disposing of evidence. This often involves a search of the person’s clothes and body. Such a search is called a ‘safety and evidence search’ (*Botton** v Winn *(Supreme... | null |
8.15-c3-s1 | 8.15 Seizure of stolen goods | ## Seizure of stolen goods
1. Police officers are entitled to seize stolen goods from a person provided the seizure occurs without force, violence or otherwise unlawful conduct (*Dalton v McNaughton* (1903) 29 VLR 144, 151).
2. This does not include a power to search a person or premises for stolen goods. The polic... | null |
8.15-c4-s1 | 8.15 Statutory powers independent of an arrest | ## Statutory powers independent of an arrest | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s2 | 8.15 Statutory powers independent of an arrest | 1. Police officers are empowered under s 82 of the *Drugs, Poisons and Controlled Substances Act 1981* to search a person or vehicle in a public space provided the police officer has reasonable grounds for suspecting that the person possesses a drug of dependence or psychoactive substance or that any such substance are... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s3 | 8.15 Statutory powers independent of an arrest | 7. There is also a limited power for a police officer, authorised by another officer of inspector rank or higher, to enter private premises and search for stolen goods. This power can only be exercised if the person occupying the premises has been convicted in the last five years of handling stolen goods or has been se... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s4 | 8.15 Statutory powers independent of an arrest | - A power to search where there are reasonable grounds to suspect the person has weapons in their possession (*Control of Weapons Act 1990* s 10);
- A power to search for firearms where there are reasonable grounds to suspect the person is committing or about to commit a Firearms Act offence and that he or she has a f... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s5 | 8.15 Statutory powers independent of an arrest | 9. Search warrants authorise police officers to enter and search private premises in order to seize goods listed in the warrant.
10. The common law extends these powers to the seizure of goods unlisted in the warrant that serve as evidence of serious offences (*Siddique v Martin* (2016) 51 VR 564 577, [32]; *McElroy &... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s6 | 8.15 Statutory powers independent of an arrest | 17. Historically, Victorian cases stated that there were no common law powers of search and seizure beyond those conferred incidental to an arrest, a search warrant or in instances of seizing stolen goods (*Levine v O’Keefe* [1930] VLR 70, 72).
18. Investigating breaches of the peace or threats to breach the peace did... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s7 | 8.15 Statutory powers independent of an arrest | 23. These principles represent the outer limits of police powers of seizure considered in the United Kingdom and do not permit police offers to interfere with one’s person or property simply to see if they have committed a crime (*Ghani v Jones* [1970] 1 QB 693, 707).
24. In *Siddique v Martin* (2016) 51 VR 564, the C... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
8.15-c4-s8 | 8.15 Statutory powers independent of an arrest | *Ghani v Jones outside of Victoria*
26. Outside Victoria there have been conflicting decisions on whether courts should adopt the *Ghani v Jones* approach (*Laurens v Willers* [2002] WASCA 183; *Challenge Plastics Pty Ltd v Collector of Customs* (1993) 42 FCR 397 (at [44]); c.f. *GH Photography Pty Ltd v McGarrigle*... | [^2]: For other statutory search powers, see Gambling Regulation Act 2003 s 2.5.38; Graffiti Prevention Act 2007 s 13; Radiation Act 2005 s 74. |
9.1.1-c1-s1 | 9.1.1 Trafficking Controlled Drugs | # **9.1.1 Trafficking Controlled Drugs**
## Trafficking Offence Provisions
1. Division 302 of the *Criminal Code *(Cth) establishes three trafficking offences:
- Section 302.2: trafficking commercial quantities of controlled drugs
- Section 302.3: trafficking marketable quantities of controlled drugs
- Secti... | null |
9.1.1-c2-s1 | 9.1.1 Relationship with State Legislation | ## Relationship with State Legislation
1. Trafficking offences also exist under the *Drugs, Poisons and Controlled Substances Act 1981 *(Vic) (*‘Drugs Act’*). For detail on these offences see 7.6.1 Trafficking in a Drug of Dependence.
2. State and Territory law operates concurrently with Division 302 (s 300.4; *Buc... | null |
9.1.1-c3-s1 | 9.1.1 Commencement Information and Amendments | ## Commencement Information and Amendments
1. These three trafficking offences were inserted into the* Criminal Code *by the *Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005* (Cth). Each of the provisions commenced operation 6 December 2005.
2. Commencing 20 February 2010, ... | [^2]: *Criminal Code Regulations 2002* (Cth) were replaced by *Criminal Code Regulations 2019 *(Cth)* *on 8 April 2019. |
9.1.1-c4-s1 | 9.1.1 Overview of Elements | ## Overview of Elements
1. For all offences under Division 302, the following elements must be proved beyond reasonable doubt:
- The person intentionally traffics in a substance;
- The substance is a controlled drug; and
- The persons is reckless as to the substance being a controlled drug (ss 302.2(1)–(2), 302... | null |
9.1.1-c5-s1 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | ## The person ‘traffics’ in a substance and does so ‘intentionally’
1. A person ‘traffics’ a substance if they do any of the following:
1. Sell the substance;
2. Prepare the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it;
3. Transport the su... | null |
9.1.1-c5-s2 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | 5. In contrast to the definition of ‘trafficks’ under the *Drugs Act*, the *Criminal Code *definition of ‘sell’ does not include ‘offer for sale’ (*Pantazis v The Queen *(2012) 268 FLR 121).
6. As the terms ‘barter’ and ‘exchange’ suggest an element of trade for value, ‘traffics’ does not include ‘gratuitous supply’. ... | null |
9.1.1-c5-s3 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | 9. ‘Preparing a substance for supply’ includes:
1. Packaging the substance; or
1. Separating the substance into discrete units (s 302.1(2)).
10. ‘Supply’ includes:
1. Supply, whether or not by way of sale;
2. Agreeing to supply (s 300.2).
11. Two fault elements are required to make out this form of trafficking.
... | null |
9.1.1-c5-s4 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | 19. The prosecution need only prove the accused had a general intention to sell the drug in the future. It is not necessary to prove the accused had a specific buyer in mind (see *Reardon v Baker *[1987] VR 887). | null |
9.1.1-c5-s5 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | C. Transport the substance with the intention of selling any of it or believing that another person intends to sell any of it
20. ‘Transports’ is defined as including delivery (s 300.2). Otherwise, ‘transports’ has its ordinary meaning.
21. Two fault elements are required to make out this form of trafficking.
22. ... | null |
9.1.1-c5-s6 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | 30. ‘Possession’ is defined in the *Criminal Code *to include the following:
1. Receiving or obtaining possession of the substance;
2. Having control over the disposition of the substance (whether or not the thing is in the custody of the person);
3. Having joint possession of the substance (s 300.2).
31. At common... | null |
9.1.1-c5-s7 | 9.1.1 The person ‘traffics’ in a substance and does so ‘intentionally’ | 37. This approach differs from the common law, the earlier provisions under the Customs Act 1901 (Cth) and the Victorian Drugs Act, which required awareness of the nature of the substance as part of proof of possession. Cases on other provisions and on the common law must therefore be read with caution (see below [57]–... | null |
9.1.1-c6-s1 | 9.1.1 The substance is a ‘controlled drug’ | ## The substance is a ‘controlled drug’
1. A controlled drug is defined exhaustively as a substance (other than a growing plant) which is either:
1. Listed by a regulation as a controlled drug;
2. A drug analogue of a listed controlled drug; or
3. Determined by the Minister as a controlled drug under s 301.13 (s ... | [^3]: This system of emergency determination replaces the previous system of listing additional drugs as controlled drugs temporarily through interim regulations (which were for a maximum period 12 months) or urgently through emergency determinations (which for a maximum period of 56 days). These changes came into forc... |
9.1.1-c7-s1 | 9.1.1 The person was reckless as to the substance being a controlled drug | ## The person was reckless as to the substance being a controlled drug
1. The prosecution must prove that the accused was reckless as to the substance being a controlled drug (ss 302.2(2), 302.3(2), 302.4(2)).
2. See 9.1.2 Importing/Exporting Border Controlled Drugs and Plants, [46]–[54] for information on this ele... | null |
9.1.1-c8-s1 | 9.1.1 Commercial or Marketable Quantity | ## Commercial or Marketable Quantity
1. Where a person is prosecuted under ss 302.2 or 302.3 with trafficking a commercial or marketable quantity, the prosecution must prove that the quantity trafficked is a commercial or marketable quantity (ss 302.2(1)(c), 302.3(1)(c)).
2. For controlled drugs, commercial and mar... | null |
9.1.1-c9-s1 | 9.1.1 Fault element as to quantity | ## Fault element as to quantity
1. While absolute liability applies to the quantity requirements (ss 302.2(3), 302.3(3)), s 313.4 creates a partial defence in relation to mistake as to quantity (see below [92]–[97]). | null |
9.1.1-c10-s1 | 9.1.1 Provisions Relevant to Determining Quantity | ## Provisions Relevant to Determining Quantity
1. The following provisions may be relevant in determining if the quantity requirements are satisfied:
- Combining different parcels on the same occasion – s 311.1
- Combining parcels from multiple offences – s 311.8
- Combining parcels from organised commercial ac... | [^4]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^5]: Section 312.2(4)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.1-c10-s2 | 9.1.1 Provisions Relevant to Determining Quantity | 8. A commercial or marketable quantity can be made out if the prosecution proves:
1. The defendant was engaged in an organised commercial activity that involved repeated trafficking in controlled drugs, and
4. The relevant quantity of a controlled drug or combination of drugs was trafficked in the course of that acti... | [^4]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^5]: Section 312.2(4)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.1-c10-s3 | 9.1.1 Provisions Relevant to Determining Quantity | 16. If the accused is charged with a single offence involving trafficking in more than one kind of controlled drug, then the quantity of drugs is a trafficable, marketable or commercial quantity if the sum of the requisite fractions of the trafficable, marketable or commercial quantity of each of those drugs is equal t... | [^4]: Section 312.1(1)(b) purports to provide another means by which the prosecution can prove the quantity requirement, however it refers to division 314 which is now repealed (effective 28 May 2013).
[^5]: Section 312.2(4)(b) purports to provide another means by which the requisite fraction can be calculated, however... |
9.1.1-c11-s1 | 9.1.1 Defences | ## Defences
1. Two defences under Division 313 apply to all trafficking offences in Division 302:
- Conduct justified or excused by or under a law (s 313.1);
- Reasonable belief that conduct justified or excused by or under a law (s 313.2).
2. The defendant bears the evidential burden of proof in relation to ... | null |
9.1.1-c12-s1 | 9.1.1 Alternative Verdicts | ## Alternative Verdicts
1. Three alternative verdicts under Division 313 apply to all trafficking offences in Division 302:
- Proof of alternative offence (s 313.3);
- Mistake as to quantity of drug (s 313.4); and
- Mistake as to identity of drug (s 313.5).
A. Proof of alternative offence
2. If the jury i... | null |
9.1.1-c12-s2 | 9.1.1 Alternative Verdicts | 4. A partial defence in relation to mistake of quantity is available where the defendant is charged with an offence involving a commercial or marketable quantity of a controlled drug and:
1. The defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the quantity of the d... | null |
9.1.1-c12-s3 | 9.1.1 Alternative Verdicts | 10. This defence applies if:
1. The defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the identity of the drug;
2. If the mistaken belief had been correct, the defendant would have been guilty of another offence against Part 9.1; and
3. The maximum penalty for the... | null |
9.1.1.1-c1-s1 | 9.1.1.1 Charge: Trafficking Marketable or Commercial Quantities of Controlled Drugs | # ***9.1.1.1 Charge: Trafficking Marketable or Commercial Quantities of Controlled Drugs***
This charge may be used when the accused is charged with the following:
i) Trafficking commercial quantities controlled drugs under s 302.2.
ii) Trafficking marketable quantities controlled drugs under s 302.3.
This charge i... | null |
9.1.1.1-c2-s1 | 9.1.1.1 Traffics | ## 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:
Fi... | [^2]: 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. |
9.1.1.1-c3-s1 | 9.1.1.1 Controlled drug | ## 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... | null |
9.1.1.1-c4-s1 | 9.1.1.1 Recklessness | ## Recklessness
**Warning! **As noted in 9.1.1 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 reck... | null |
9.1.1.1-c5-s1 | 9.1.1.1 Quantity | ## 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 does not... | null |
9.1.1.1-c5-s2 | 9.1.1.1 Quantity | 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 t... | null |
9.1.1.1-c5-s3 | 9.1.1.1 Quantity | [*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 q... | null |
9.1.1.1-c5-s4 | 9.1.1.1 Quantity | 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 [... | null |
9.1.1.1-c5-s5 | 9.1.1.1 Quantity | 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 pros... | null |
9.1.1.1-c6-s1 | 9.1.1.1 Defences | ## 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 reason... | null |
9.1.1.1-c7-s1 | 9.1.1.1 Summary | ## 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.
*... | null |
9.1.1.2-c1-s1 | 9.1.1.2 Checklist: Trafficking Marketable or Commercial Quantities of Controlled Drugs | # ***9.1.1.2 Checklist: Trafficking Marketable or Commercial Quantities of Controlled Drugs***
This checklist can be used where it is alleged the accused trafficked a commercial or marketable quantity by selling a controlled drug.
Before you can convict the accused of trafficking a [commercial/marketable] quantity of... | null |
9.1.1.2-c1-s2 | 9.1.1.2 Checklist: Trafficking Marketable or Commercial Quantities of Controlled Drugs | **Quantity**
**4.** Has the prosecution proved that the quantity of the controlled drug trafficked was [commercial/marketable]?
***Consider: ***[***Insert relevant quantity***]*** is a ***[***commercial/marketable***]*** quantity of ***[***insert name of controlled drug***]***.***
If Yes then the accused is guilty o... | null |
9.1.1.3-c1-s1 | 9.1.1.3 Charge: Trafficking Controlled Drugs | # ***9.1.1.3 Charge: Trafficking Controlled Drugs***
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 tr... | null |
9.1.1.3-c2-s1 | 9.1.1.3 Traffics | ## 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:
Fi... | [^2]: 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. |
9.1.1.3-c3-s1 | 9.1.1.3 Controlled drug | ## 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... | null |
9.1.1.3-c4-s1 | 9.1.1.3 Recklessness | ## Recklessness
**Warning! **As noted in 9.1.1 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 reck... | null |
9.1.1.3-c5-s1 | 9.1.1.3 Defences | ## 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 reas... | null |
9.1.1.3-c6-s1 | 9.1.1.3 Summary | ## 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... | null |
9.1.1.4-c1-s1 | 9.1.1.4 Checklist: Trafficking Controlled Drugs | # ***9.1.1.4 Checklist: Trafficking Controlled Drugs***
This checklist can be used where it is alleged the accused trafficked by selling a controlled drug.
Before you can convict the accused of trafficking a controlled drug, there are **three elements** that the prosecution must prove beyond reasonable doubt:
1. The... | null |
9.1.1.4-c1-s2 | 9.1.1.4 Checklist: Trafficking Controlled Drugs | Last updated: 23 June 2025 | null |
9.1.2-c1-s1 | 9.1.2 Importing/Exporting Border Controlled Drugs and Plants | # 9.1.2 Importing/Exporting Border Controlled Drugs and Plants
## Import-Export Offence Overview
1. Division 307 of the Criminal Code establishes four subdivisions related to import-export of border controlled drugs, plants and precursors:
- Subdivision A (ss 307.1–307.4): Importing and exporting border contro... | null |
9.1.2-c2-s1 | 9.1.2 Commencement Information and Amendments | ## Commencement Information and Amendments
1. Division 307 was inserted into the Criminal Code by the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth). The division commenced operation 6 December 2005.
2. On 20 February 2010, the definition of ‘import’ was broadened to... | null |
9.1.2-c3-s1 | 9.1.2 Importing and exporting commercial quantities of border controlled drugs or border controlled plants | ## Importing and exporting commercial quantities of border controlled drugs or border controlled plants | null |
9.1.2-c4-s1 | 9.1.2 Overview of offences | ## Overview of offences
1. Subdivision A of Division 307 of the Criminal Code establishes four import-export offences.
- Section 307.1: Importing and exporting commercial quantities of border controlled drugs or border controlled plants.
- Section 307.2: Importing and exporting marketable quantities of border co... | null |
9.1.2-c5-s1 | 9.1.2 Overview of elements | ## Overview of elements
1. The following must be proved by the prosecution beyond reasonable doubt for all offences in subdivision A:
- The person imports or exports a substance;
- The person intended to import or export the substance;
- The substance is a border controlled drug or border controlled plant;
- T... | null |
9.1.2-c6-s1 | 9.1.2 The person imports or exports a substance | ## The person imports or exports a substance
1. The first element requires the prosecution to prove that the accused either ‘imported’ a substance or ‘exported’ a substance.
## A. Import | null |
9.1.2-c6-s2 | 9.1.2 The person imports or exports a substance | 2. To ‘import’ a substance includes:
1. bringing the substance into Australia; and
2. dealing with the substance in connection with its importation (s 300.2).
3. This definition may be viewed as creating a ‘primary’ and ‘extended’ definition of ‘import’ (see R v Tranter (2013) 116 SASR 452; Brown v The Queen [2020] ... | null |
9.1.2-c6-s3 | 9.1.2 The person imports or exports a substance | 8. arranging for payment of those involved in the importation process (see Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2010 (Cth); R v Tranter (2013) 116 SASR 452).
8. The extended definition of import in section 300.2 can be broken into two requirements:
1. the accu... | null |
9.1.2-c6-s4 | 9.1.2 The person imports or exports a substance | 14. While dealings can occur before, during or after importation, the subject-matter of the importation must exist at the time of the relevant conduct, otherwise the accused will not have dealt with ‘the substance’. Therefore, actions such as asking a third party to send drugs, or telling a third party where drugs shou... | null |
9.1.2-c6-s5 | 9.1.2 The person imports or exports a substance | 18. Whether conduct is in connection with an importation is a question of fact for the jury in each case (Brar v R [2016] VSCA 281, [59]).
19. The answer to whether conduct is in connection with an importation is not assisted by considering whether the dealing took place before, or in connection with, the arrival of t... | null |
9.1.2-c6-s6 | 9.1.2 The person imports or exports a substance | ## B. Export
20. To ‘export’ includes to take from Australia (s 300.2).
21. Unlike the definition of import, the definition of ‘export’ does not include an extended meaning of dealing with a substance in connection with its exportation.
22. The focus on the definition is likely to be on when the substance leaves A... | null |
9.1.2-c7-s1 | 9.1.2 The person intended to import or export the substance | ## The person intended to import or export the substance
1. The prosecution must also prove that the accused intended to import or export the substance (s 5.6; see also R v Campbell (2008) 73 NSWLR 272).
2. A person intends to engage in conduct if he or she means to engage in conduct (s 5.2).
3. Therefore, the pro... | null |
9.1.2-c7-s2 | 9.1.2 The person intended to import or export the substance | - The second and fourth fault elements involve different questions and must be considered separately (Smith & Afford v R (2017) 259 CLR 291, [68]);
- Kural reasoning involves a process of inferential reasoning, and that proof of knowledge or belief provides part of the basis for drawing an inference of intent. Knowled... | null |
9.1.2-c8-s1 | 9.1.2 The substance is a border controlled drug or border controlled plant | ## The substance is a border controlled drug or border controlled plant
1. Each offence under Subdivision A requires the accused to have imported or exported a ‘border controlled drug’ or ‘border controlled plant’. These terms are defined exhaustively in ss 301.4 and 301.5 (s 300.2).
2. A border controlled plant is... | [^1]: This system of emergency determination replaces the previous system of listing substances as border controlled drugs or plants temporarily through interim regulations (which were for a maximum period 12 months) or urgently through emergency determinations (which for a maximum period of 56 days). These changes cam... |
9.1.2-c8-s2 | 9.1.2 The substance is a border controlled drug or border controlled plant | 7. The Minister may determine that a substance is a border controlled drug or border controlled plant via an Emergency Determination (ss 301.13(1)(a), (b)).[^1] The Minister is not permitted to make more than one determination under this section in relation to a particular substance (s 301.13(3)).
8. A determination u... | [^1]: This system of emergency determination replaces the previous system of listing substances as border controlled drugs or plants temporarily through interim regulations (which were for a maximum period 12 months) or urgently through emergency determinations (which for a maximum period of 56 days). These changes cam... |
9.1.2-c8-s3 | 9.1.2 The substance is a border controlled drug or border controlled plant | 10. The definition of ‘drug analogue’ in the Criminal Code sets out ways in which a substance can be related to a listed border controlled drug or a ‘primary analogue’ of the listed border controlled drug (see s 301.9(1)). These conditions relate to similarities in the chemical structure between a substance and a liste... | [^1]: This system of emergency determination replaces the previous system of listing substances as border controlled drugs or plants temporarily through interim regulations (which were for a maximum period 12 months) or urgently through emergency determinations (which for a maximum period of 56 days). These changes cam... |
9.1.2-c9-s1 | 9.1.2 The person was reckless as to the substance being a border controlled drug or border controlled plant | ## The person was reckless as to the substance being a border controlled drug or border controlled plant
1. The prosecution must prove that the accused was reckless as to the substance being a border controlled drug or border controlled plant (ss 307.1(2), s 307.2(2), s 307.3(2) and 307.4(2)).
2. A person is reckle... | null |
9.1.2-c9-s2 | 9.1.2 The person was reckless as to the substance being a border controlled drug or border controlled plant | 4. The jury must determine whether it is unjustifiable to take a risk on the facts known to the accused (s 5.4(1)(b)). However, the accused does not need to have believed that it was unjustifiable to take the risk. The test is objective not subjective.
5. The question of whether a risk is unjustifiable requires the ju... | null |
9.1.2-c10-s1 | 9.1.2 Commercial/marketable quantity | ## Commercial/marketable quantity
1. Where a person is charged under s 307.1 or 307.2 with importing or exporting a commercial or marketable quantity, the prosecution must prove that the quantity imported or exported was commercial or marketable (ss 307.1(1)(c), 307.2(1)(c)).
2. For border controlled plants and bor... | [^2]: In the past, a listing of commercial quantities of controlled drugs was found in s 314.1 of division 314 to the Criminal Code. This division has now been repealed, effective 28 May 2013. |
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