7.6.1 - Trafficking in a Drug of Dependence1

7.6.1 - TRAFFICKING IN A DRUG OF DEPENDENCE.................................................................1

SECTION 70(1) DEFINITION OF “TRAFFICKING”......................................................................3

Preparing a Drug of Dependence for Trafficking..............................................................3

Agreeing and Offering to Sell a Drug of Dependence........................................................3

Possessing a Drug of Dependence for Sale........................................................................4

COMMON LAW DEFINITION OF “TRAFFICKING”.....................................................................6

Carrying on a Trafficking Business (Giretti Trafficking)...................................................7

ATTEMPTED TRAFFICKING....................................................................................................10

INTENTION TO TRAFFICK IN A DRUG OF DEPENDENCE.........................................................12

COMMERCIAL AND LARGE COMMERCIAL QUANTITIES........................................................14

MIXTURES OF DRUGS............................................................................................................15

DETERMINING QUANTITY.....................................................................................................16

AGGREGATING QUANTITIES..................................................................................................17

INTENTION TO TRAFFICK IN A PARTICULAR QUANTITY.......................................................18

Giretti Trafficking and Intention to Traffick in a Quantity..............................................19

1 This document was last updated on 2 October 2017.

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Commencement Information

1. The Drugs, Poisons and Controlled Substances Act 1981 (Vic) (the “Drugs Act”) establishes four trafficking offences, each of which commenced operation on 1 January 2002:

i) Section 71 – trafficking in a large commercial quantity of a drug of dependence;

ii) Section 71AA – trafficking in a commercial quantity of a drug of dependence;

iii) Section 71AB – trafficking in a drug of dependence to a child;

iv) Section 71AC – trafficking in a drug of dependence.

2. Prior to 1 January 2002 there was only one trafficking provision (s71), which contained the elements of the offence and specified different penalties depending upon the quantity trafficked. This created uncertainty about whether there was just one offence with aggravating circumstances, or a number of distinct offences (see R v Satalich (2001) 3 VR 231). One of the purposes behind the enactment of the current provisions was to make it clear that there are a number of distinct trafficking offences (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).

3. If a trafficking offence is alleged to have been committed between dates, one date before and one date on or after 1 January 2002, then the offence is to be treated as having been committed before the commencement of the current provisions (Drugs Act s137).

Overview of Elements

4. For each of the trafficking offences, the prosecution must prove the following elements beyond reasonable doubt:

i) That the accused intentionally “trafficked” or “attempted to traffick” in a particular substance; and

ii) That it was a “drug of dependence” that the accused intentionally trafficked or attempted to traffick.

5. In relation to ss71 and 71AA, the prosecution must also prove that the accused intentionally trafficked or attempted to traffick in a quantity of drugs that was not less than a large commercial or commercial quantity respectively.

6. In relation to s71AB, the prosecution must prove that the accused intentionally trafficked or attempted to traffick to a child.

7. Each of the trafficking provisions exclude from their scope people who are authorised or licensed to traffick in a drug of dependence.

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Definitions of “Trafficking”

8. “Trafficking” is defined in s70(1) of the Drugs Act. However, as this definition is inclusive, it is also possible to rely on the common law definition of trafficking (R v Giretti (1986) 24 A Crim R 112). Both of these definitions are addressed in turn below.

9. Each of the trafficking offences requires the prosecution to prove that the relevant act of trafficking was intentional (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300).

Section 70(1) Definition of “Trafficking”

10. Section 70(1) of the Drugs Act defines trafficking to include:

Preparing a drug of dependence for trafficking;

Manufacturing a drug of dependence; or

Selling, exchanging, agreeing to sell, offering for sale or having in possession for sale, a drug of dependence.

11. Although the terms “manufacture” and “sell” are defined in s4 of the Drugs Act, these definitions do not apply to the trafficking offences (s70(2)).

Preparing a Drug of Dependence for Trafficking

12. In relation to trafficking by “preparing a drug of dependence for trafficking”, the prosecution must prove that the accused:

Prepared a drug of dependence;

Intended to prepare that drug; and

Prepared the drug for the purpose of trafficking (R v Giretti (1986) 24 A Crim R 112).

13. This requires the prosecution to prove that when the accused prepared the drug, they intended either that the drug would be dealt with in one of the ways specified in s70(1), or that it would be trafficked in the manner defined by the common law (see “Common Law Definition of ‘Trafficking’” below).

Agreeing and Offering to Sell a Drug of Dependence

14. In relation to trafficking by making an “agreement” or “offer” to sell a drug of dependence under s70(1), the prosecution must prove that the accused:

Made a genuine agreement or offer to sell a drug of dependence to another person;

Intended to make that agreement or offer; and

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Intended the agreement or offer to be regarded as genuine by the person to whom it was made (R v Peirce [1996] 2 VR 215; Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA)).

15. It is not necessary for the prosecution to prove that the accused actually possessed the relevant drug, intended to complete the sale, or could ever have supplied the drug to the purchaser (Gauci v Driscoll [1985] VR 428; R v Addison (1993) 70 A Crim R 213 (NSW CCA); R v Peirce [1996] 2 VR 215).

16. It does not matter if the accused intended to provide a different substance from that which they offered, or to provide nothing at all, as long as they intended the agreement or offer to be regarded as genuine by the person to whom it was made (R v Addison (1993) 70 A Crim R 213 (NSW CCA)).

Possessing a Drug of Dependence for Sale

17. In relation to trafficking by “having in possession for sale a drug of dependence” under s70(1), the prosecution must prove that:

The accused possessed a drug of dependence;

The accused intended to sell that drug (see, e.g., R v Francis-Wright (2005) 11 VR 354).

18. The prosecution must prove possession for sale by establishing possession at common law. Section 5 of the Act, which deems a person to be in possession of a drug of dependence in specified circumstances, does not apply to trafficking offences (Momcilovic v R (2011) 245 CLR 1).

19. At common law, a person has in their possession whatever is, to their knowledge, physically in their custody or under their physical control (DPP v Brooks [1974] AC 862; He Kaw Teh v R (1985) 157 CLR 523; R v Maio [1989] VR 281; R v Mateiasevici [1999] 3 VR 185).

20. According to this definition, common law possession of a drug of dependence has three elements:

1. The accused had physical custody or control of the drug;

2. The accused intended to have custody of or exercise control over the drug; and

3. The accused knew that the substance over which they had custody or control was a drug of dependence, or were aware that it was likely that it was a drug of dependence (R v Maio [1989] VR 281. See also He Kaw Teh v R (1985) 157 CLR 523; Momcilovic v R (2011) 245 CLR 1).

21. A person may have possession of an item even though they are not carrying the item or do not have it on them, as long as they have physical custody of or control over the item (R v Maio [1989] VR 281;

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R v Mateiasevici [1999] 3 VR 185).

22. It is not necessary for the prosecution to prove “exclusive possession”, that is, the right of the accused to exclude everyone else (other than those with whom s/he was acting in concert) from interference with the drug. The accused will possess a drug if the three elements outlined above are satisfied – even if there is a reasonable possibility that someone else also possessed that drug (R v Tran (2007) 16 VR 673. See also R v Dibb (1991) 52 A Crim R 64 (NSW CCA); R v Cumming (1995) 86 A Crim R 156 (WA CCA) but c.f. Moors v Burke (1919) 26 CLR 265; Williams v Douglas (1949) 78 CLR 521)).

23. It is not always necessary to define the concept of possession at common law – the jury need only be told so much of the law as is necessary for them to know having regard to the issues in the trial (R v Clarke and Johnstone [1986] VR 643; R v Mateiasevici [1999] 3 VR 185; R v Bandiera and Licastro [1999] 3 VR 103; R v Tran [2007] VSCA 19).

24. A distinction is drawn between possessing a drug for the accused’s own use and possessing a drug for sale to others. While the former may provide the basis for a charge of possession of a drug of dependence (Drugs Act s73), it cannot sustain a charge of trafficking (R v Kardogeros [1991] 1 VR 269).

25. The prosecution only needs to prove that the accused had a general intention to sell the drug in the future. It is not necessary to prove that a particular sale was in contemplation at the material time, or that the accused had a specific buyer in mind (Reardon v Baker [1987] VR 887).

26. A drug may be in possession for sale even if the accused intends to mix it with another substance prior to sale (McNair v Terroni [1915] 1 KB 526; cited with approval by McGarvie J in R v Kardogeros [1991] 1 VR 269).

27. It may be possible for the jury to infer from the lack of usability of a portion of drugs possessed that the unusable portion was not possessed for sale. This may affect the quantity of drugs trafficked (see “Determining Quantity” below) (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

28. A person who cultivates a drug may be guilty of trafficking (as well as the cultivation offences specified in ss72, 72A and 72B) if it can be shown that the drug was possessed for sale (R v Bandiera and Licastro [1999] 3 VR 103; R v Kardogeros [1991] 1 VR 269; R v Stavropoulos and Zamouzaris (1990) 50 A Crim R 315; R v Clarke and Johnstone [1986] VR 643. For further information on the interaction of these offences, see “Trafficking, Cultivation and Possession” below).

Common Law Definition of “Trafficking”

29. At common law, the term “trafficking” has been held to at least

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connote:

An activity performed in a commercial setting (i.e. a setting in which it can fairly be inferred that someone involved is making a profit);

Participation by the alleged trafficker in the progress of goods from source to consumer; and

Contact between the alleged trafficker and at least one other person (R v Holman [1982] VR 471; Giretti v R (1986) 24 A Crim R 112).

30. Mere possession of drugs will not be sufficient to constitute trafficking at common law. A person will not have been involved in common law trafficking if they were not involved in the onward movement of the drugs to the ultimate consumer (R v Holman [1982] VR 471; R v Kloufetos (1985) 14 A Crim R 426 (Vic CCA)).

31. So a person who possessed drugs will not have trafficked at common law even if it can be inferred that they possessed the drugs for a commercial purpose and intended to traffick in the future (cf. under the statutory definition of trafficking: see above). They must have at least committed an overt act directed towards transferring ownership or possession of the drugs (R v Holman [1982] VR 471; R v Kloufetos (1985) 14 A Crim R 426 (Vic CCA)).

32. While it is necessary for there to be contact between the alleged trafficker and at least one other person, it may be sufficient if it can be inferred that a person exists who plays the role of the other person in the movement of the drugs, even if the identity of that person is unknown (R v Holman [1982] VR 471).

33. Trafficking at common law may involve delivering or selling drugs to another person, or possibly purchasing or receiving drugs from another person (R v Holman [1982] VR 471).

34. Bartering, sending or forwarding drugs may also be trafficking at common law (Giretti v R (1986) 24 A Crim R 112).

35. A voluntary trader acting as a link between parties to a transaction may still be involved in trafficking at common law, even if they are acting without reward (Falconer v Pedersen [1974] VR 185).

36. A person need not ever have possessed an item, or held title to it, to have been involved in trafficking at common law (R v Holman [1982] VR 471).

Carrying on a Trafficking Business (Giretti Trafficking)

37. “Trafficking” can be established by proving that the accused committed an identifiable single act or transaction, such as selling drugs on a specific occasion. It can also be established by proving that the accused carried on a drug dealing business over a specified period of time (Giretti v R (1986) 24 A Crim R 112; R v Lao and

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Nguyen (2002) 5 VR 129).

38. This latter type of trafficking (sometimes known as Giretti trafficking) requires the prosecution to prove that the accused was involved in a continuing trade or business of dealing in drugs, or had engaged on a regular and commercial basis in the transmission of drugs from source to consumer (Giretti v R (1986) 24 A Crim R 112; R v Te [1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129).

39. The expression “trade” or “business” does not connote the existence of a formal structure or organisation. It is used in a broad sense to encompass a relatively continuous activity, performed over a designated period of time, involving commercial dealings in the prohibited substance (R v Lao and Nguyen (2002) 5 VR 129).

40. A charge of trafficking on a Giretti basis will usually allege that the accused conducted the business of trafficking between a start date and an end date. It is open to a jury to conclude that such a business was being carried on if it finds that the accused was conducting such a business for a significant part of the period specified (Mustica v R (2011) 31 VR 367).

41. There is no need for the prosecution to prove that there was an agreement to engage in the business of trafficking. The prosecution must merely prove that the accused was involved in the trafficking business over the relevant period (R v Lao and Nguyen (2002) 5 VR 129).

42. It does not matter if the alleged activities were many and varied, and occurred over a long period of time, as long as they were part of a “continuing” offence. That is, they must have taken place with the necessary degree of regularity and system to amount to a business or trade (Giretti v R (1986) 24 A Crim R 112).

43. It is immaterial whether the accused was a supplier or purchaser of the drug, so long as their involvement went beyond being merely a remote and disjunctive commercial seller or buyer. They must have engaged in the continuous commercial activity of trafficking (R v Lao and Nguyen (2002) 5 VR 129).

44. The principles set down in Giretti are not limited to businesses that involve a regular ongoing trade in one particular drug. They also apply to businesses in which the accused deals in a diversity of drugs in the usual and ordinary course of their trade. So if it can be shown, for example, that the accused had a business which involved selling both heroin and marijuana on a regular basis, the accused could be convicted of trafficking in both of these drugs (R v Komljenovic (2006) 163 A Crim R 298; [2006] VSCA 136).

45. This will be the case even if the accused mainly trafficked in one type of drug, with other drugs only trafficked occasionally. As long as it can be shown that all of the sales were part of the same drug dealing business, and were not isolated sales which were separate from that business, it does not matter that the frequency and volume of sales in some drugs greatly exceeded that of others (R v Komljenovic

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(2006) 163 A Crim R 298; [2006] VSCA 136).

46. The jury may decide that a particular sale of drugs was separate from the accused’s usual drug dealing business, and so not part of an ongoing trade in drugs. However, as drugs are the stock in trade of drug dealers, any sale of drugs will prima facie be considered to be part of the accused’s drug business (R v Komljenovic (2006) 163 A Crim R 298; [2006] VSCA 136).

47. It is possible that an accused who has been in the business of dealing in a number of different drugs might cease to deal in one of them, while continuing to deal in others. In such a case, the accused could no longer be said to be trafficking in the drug which they stopped selling. However, this will be a question of fact for the jury. They will need to determine whether an apparent gap in sales in the drug in question was due to the accused deciding to no longer deal in that drug, or whether it was due to sales being slow. If the latter, then the accused would remain liable for trafficking in that drug, despite the low volume of sales (R v Komljenovic (2006) 163 A Crim R 298; [2006] VSCA 136).

48. The fact that an accused carried on part of their drug trafficking business on their own account, and part in association with other dealers, does not prevent all of their drug trafficking transactions forming part of their drug dealing business. The accused may be liable for all of the transactions, regardless of whether they were solely or jointly responsible for a particular transaction (R v Komljenovic (2006) 163 A Crim R 298; [2006] VSCA 136).

49. Where two accused are joined in a Giretti count of trafficking, it is not necessary for the prosecution to establish that they had entered into an agreement or understanding with each other as to their respective involvements in the business, or were in a joint enterprise with each other. Nor does the prosecution have to prove that the parties ever met or communicated with each other, or were aware of the identity of the other party. It is sufficient if they can prove that the parties were both engaged in the alleged trafficking business (R v Lao and Nguyen (2002) 5 VR 129).

50. Giretti trafficking cannot ordinarily be established by simply proving that the accused engaged in a number of relevant transactions over a period of time. A series of isolated sales made over a period of time does not constitute the continuing activity of trafficking (Giretti v R (1986) 24 A Crim R 112; R v Komljenovic (1994) 76 A Crim R 521; R v Hamzy (1994) 74 A Crim R 341 (NSWCCA); R v Lao and Nguyen (2002) 5 VR 129).

51. So in the absence of an admission by the accused that they were carrying on a trade or business of dealing in drugs, the jury must be directed that in order to convict an accused of this type of trafficking, they must be able to infer from the evidence that the accused was engaged in such a business (Giretti v R (1986) 24 A Crim R 112; R v Komljenovic (1994) 76 A Crim R 521; R v Hamzy (1994) 74 A Crim R 341 (NSWCCA); R v Lao and Nguyen (2002) 5 VR 129).

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52. Such an inference can be drawn from evidence of a sufficient number of transactions (e.g. sales and deliveries), together with such other evidence as will enable the jury to conclude that the accused was engaged in the disposition or transmission of drugs on a regular and commercial basis during the period of the alleged offence (Giretti v R (1986) 24 A Crim R 112).

53. It does not matter if the prosecution relies on just two specific instances of trafficking, if the evidence enables the jury to draw an inference that those two acts occurred in the context of a business of trafficking, and were not simply two distinct offences for which separate charges should have been laid (Giretti v R (1986) 24 A Crim R 112; R v Lao and Nguyen (2002) 5 VR 129; R v Komljenovic (2006) 163 A Crim R 298; [2006] VSCA 136).

54. It is also unimportant that a Giretti count of trafficking will generally consist of a series of activities or transactions which could each in themselves be described as acts of trafficking, so long as the jury is properly directed that these individual transactions are only relevant to the extent that they provide a basis for drawing an inference that the accused was engaged in the business of trafficking (unless the accused is also charged with trafficking by virtue of those individual transactions as an alternative – see below) (Giretti v R (1986) 24 A Crim R 112).

55. The jury does not need to unanimously agree that all of the instances of drug dealing alleged by the prosecution have been proved, or that any one particular transaction has been proved. The jury only needs to be unanimous in drawing the inference, from the conduct proved, that during the relevant period the accused was engaged in the continuing offence of trafficking (Giretti v R (1986) 24 A Crim R 112; R v Te [1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129; Mustica v R (2011) 31 VR 367).

56. The jury can draw the requisite inference in different ways, relying on different facts or circumstances – so long as they are all satisfied beyond reasonable doubt that the accused was guilty of the continuous offence of trafficking over the alleged period (Giretti v R (1986) 24 A Crim R 112; R v Te [1998] 3 VR 566; R v Lao and Nguyen (2002) 5 VR 129).

57. It is not necessary for the prosecution to prove that the accused was trafficking 24 hours a day for the whole of the specified period. They need only prove that the accused was carrying on the business of trafficking for some portion of the alleged period (R v Komljenovic (1994) 76 A Crim R 521; Giretti v R (1986) 24 A Crim R 112; Mustica v R (2011) 31 VR 367).

58. A presentment which contains one count of engaging in a business of trafficking over a period of time, and a number of alternative counts specifying particular acts alleged to have taken place during that period of time, will not be bad for duplicity. In such a case, the jury should be invited to determine whether they can infer from all of the evidence (including the specified acts) that the accused was carrying

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on a business of trafficking in drugs over the relevant period. If they can, they should only return a guilty verdict on the Giretti count. If they cannot draw such an inference, they should then look to see if the prosecution has proven any of the alternative specific counts (R v Te [1998] 3 VR 566. See also R v Lao and Nguyen (2002) 5 VR 129).2

Attempted Trafficking

59. Each of the trafficking provisions make it an offence to traffick or “attempt to traffick” in the specified manner. A person can therefore be charged with attempted trafficking directly under ss71, 71AA, 71AB or 71AC of the Drugs Act, rather than having to rely on s321M of the Crimes Act 1958.

60. A person charged with attempted trafficking under one of these provisions will be subject to the same penalties as a person charged with trafficking. In contrast, a person who is charged with attempted trafficking under s321M of the Crimes Act 1958 will be subject to the lesser penalties set out in s321P of that Act.

61. Section 321N of the Crimes Act 1958 sets out the conduct that will constitute an attempt. This section applies to a person charged with attempted trafficking under the provisions of the Drugs Act by virtue of s321R of the Crimes Act 1958.

62. For more information about attempts see Attempts (Topic not yet completed).

Drug of Dependence

63. Each of the trafficking offences requires the accused to have trafficked in a “drug of dependence”. This term is defined in s4 of the Drugs Act, to include:

Any form of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Act, whether natural or synthetic;

The salts, analogues, derivatives and isomers of the drugs specified in Parts 1 and 3 of Schedule Eleven to the Act;

The salt of the abovementioned analogues, derivatives and isomers;

Any substances that are included in the classes of drugs specified above; and

The fresh or dried parts of the plants specified in Part 2 of Schedule Eleven.

64. These substances fall within the definition of a “drug of dependence”

2 While the accused may be presented on both a Giretti count of trafficking and an alternative specific count of trafficking that occurred entirely within the specified period, he or she should not be convicted of both counts (see, e.g., R v Doherty [2009] VSCA 93; R v Bidmade [2009] VSCA 90).

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even if they are contained in or mixed with another substance (except for the plants specified in Part 2 of Schedule Eleven).

65. Unusable portions of a drug (such as the stems, roots and stalks of the cannabis plant) are still considered to be drugs of dependence, so long as they fit within the definition specified by s4 (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)). The usability of a portion of drugs may, however, affect the question of whether that drug was possessed for sale (see “Possessing a drug of dependence for sale” above) as well as the quantity of drug possessed (see “Determining Quantity” below)).

66. Section 120 of the Drugs Act provides that a certificate purporting to be signed by an analyst with respect to any analysis or examination he or she has made shall be sufficient evidence of the identity of the substance analysed, of the result of the analysis and of the matters relevant to the proceedings as stated in the certificate. Section 120 also provides that a certificate purporting to be signed by a botanist shall be sufficient evidence of the identity of the substance examined. There is no need to provide proof that the person who signed the certificate is an analyst or botanist, nor to provide proof of their signature.

67. The provisions in s120 do not apply if the certificate was not served on the defence at least seven days before the hearing, or if the defence, at least three days before the hearing, gave notice in writing to the informant and the analyst or botanist that the analyst or botanist is required to attend as a witness (s120(2)).

68. Whether one drug is a salt, analogue, derivative or isomer of a listed drug is a question of fact for the jury. In the case of a derivative, it will require expert evidence which examines matters such as whether one drug can be made from another and whether one drug is structurally related to another (see Daley v Tasmania (2012) 21 Tas R 247; Clegg v Western Australia (No 2) [2017] WASCA 30).

Intention to Traffick in a Drug of Dependence

69. In addition to proving that the accused trafficked in a drug of dependence, each of the trafficking offences requires the prosecution to prove that the accused intended to traffick in a drug of dependence (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; see also He Kaw Teh v R (1985) 157 CLR 523; Momcilovic v R (2011) 245 CLR 1).

70. The prosecution does not need to prove that the accused intended to traffick in the particular drug in question. They need only prove that the accused intended to traffick in a drug of dependence (He Kaw Teh v R (1985) 157 CLR 523).

71. Although this intention may be proved by an admission by the accused that they intended to traffick in a drug of dependence, in most cases it will be necessary to infer the requisite intention from the performance of the proscribed act and the circumstances in

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which it was performed (Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523; R v Page [2008] VSCA 54).

72. It will usually be possible to infer an intention to traffick in a drug of dependence if it can be established that the accused knew of the existence and nature of the substance at the time that it was trafficked (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502; He Kaw Teh v R (1985) 157 CLR 523).

73. However, the prosecution does not need to prove knowledge of the existence and nature of the substance. It is possible that the requisite intent could instead be inferred from a lesser state of mind, such as:

A belief that it was a drug of dependence that was being trafficked (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502); or

An awareness of the likelihood that it was a drug of dependence that was being trafficked (i.e. an awareness that there was a significant or real chance that their conduct involved trafficking in a prohibited drug) (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Bahri Kural v R (1987) 162 CLR 502; Mustica v R (2011) 31 VR 367).

74. In some cases, it may also be possible to infer an intention to traffic in a drug of dependence from the fact that:

The circumstances were such that the accused’s suspicions that s/he was trafficking a drug of dependence would have been aroused; and

The accused deliberately failed to make inquiries about the substance being trafficked, for fear of learning the truth (See, e.g., R v Garlick (No.2) (2007) 15 VR 388; He Kaw Teh v R (1985) 157 CLR 523; Bahri Kural v R (1987) 162 CLR 502; R v Crabbe (1985) 156 CLR 464).

75. However, such cases of “wilful blindness” will be rare, and judges should be cautious before charging the jury about this possibility. There must be evidence that the accused realised there was a risk that s/he was trafficking a drug of dependence, and deliberately chose to close his or her eyes to that risk so that s/he could later deny knowledge and avoid liability. In the absence of such evidence, it will be a misdirection to direct the jury about wilful blindness (R v Garlick (No.2) (2007) 15 VR 388).

76. It may be possible for the jury to infer the requisite state of mind from proof that the accused had custody or control of an object found to contain drugs, or from proof of the act of trafficking. However, this will not always be the case (He Kaw Teh v R (1985) 157 CLR 523).

77. While the states of mind outlined above (other than wilful blindness) will usually support an inference of the requisite intention, this will

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not always be the case. A judge should therefore not instruct the jury that they may convict simply because, for example, the prosecution established that the accused was aware that there was a significant or real chance that their conduct involved trafficking in a prohibited drug (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).

78. The jury should instead be directed that proof that the accused was aware of the likelihood that it was a drug of dependence that was being trafficked is capable of sustaining an inference that the accused intended to traffick in a drug of dependence. At the same time, the judge should make clear to the jury that it is for them to determine whether that inference should be drawn, based on all of the facts and circumstances R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Reed [2008] VSCA 20; R v Page [2008] VSCA 54).

79. In charging the jury on this issue, judges should follow as nearly as possible the language used in R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to ensure that the phrase “is capable of sustaining the inference” is used whenever reference is made in this context to proof of belief “in a significant or real chance” (R v Page [2008] VSCA 54).

80. The jury must be instructed that an inference is not to be drawn unless they are satisfied that it is the only inference that is reasonably open in the circumstances of the case (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 54).

81. Where intention is to be proved by inference, the judge should direct the jury as to any evidence capable of sustaining that inference (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Page [2008] VSCA 54).

82. A judge should not attempt to explain the meaning of the expression “significant or real chance”, other than to tell the jury that the words have their ordinary meaning and that it is a question for them to decide (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299).

83. Even though the issue of intent may not be a live issue in a trial, and may not have been raised by the defence, as it is an element of the offence a judge is required to direct the jury about it, unless the defence has conceded that a direction is not required (R v Bui [2005] VSCA 300).

Quantities

Commercial and Large Commercial Quantities

84. There are two trafficking offences that specify the quantity of drugs that must be trafficked if an accused is to be found guilty:

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Section 71 – trafficking in a “large commercial quantity”; and

Section 71AA – trafficking in a “commercial quantity”.

85. “Large commercial quantity” is defined in s70(1) of the Drugs Act to mean:

The quantity of drugs, or the number of plants, specified in column 1A of Parts 2 and 3 of Schedule Eleven to the Act; and

If the drug is contained in or mixed with another substance, the quantity of mixture specified in column 1B of Part 3 of Schedule Eleven.

86. “Commercial quantity” is defined in s70(1) of the Drugs Act to mean:

The quantity of drugs, or the number of plants, specified in column 2 of Parts 1, 2 and 3 of Schedule Eleven; and

If the drug is contained in or mixed with another substance, the quantity of mixture specified in column 2A of Part 3 of Schedule Eleven.

87. The trafficking offences specified in ss71AB and 71AC do not require proof that the accused trafficked in any particular quantity.

88. The quantities of drugs included in Parts 1, 2 and 3 of Schedules Eleven were recently modified by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, with the new provisions commencing operation on 1 May 2007 unless proclaimed earlier.

Mixtures of Drugs

89. The definitions of “commercial” and “large commercial” quantities draw a distinction between pure quantities and mixed quantities of drugs, specifying different minimum weights for each in Part 3 of Schedule Eleven.

90. It has been held that the amounts specified in relation to mixed quantities of drugs only apply if the drugs in question were actually mixed with another substance, and the total quantity of that mixture was not less than the specified amount. If these conditions are not satisfied, then it is permissible to look at the pure quantity of a drug that is contained within a mixture (R v Zhu (2000) 2 VR 421).

91. This means, for example, that a 400g mixture containing 300g of pure heroin will still be a commercial quantity, despite the fact that the amount of mixture is less than 500g (the requisite amount of mixture specified in column 2A of Part 3 of Schedule 11). This is because the amount of pure heroin contained within that mixture is more than 250g (the requisite amount of a pure drug specified in column 2 of Part 3 of Schedule 11).

92. Care needs to be taken when drafting the presentment in cases where it is alleged that the accused trafficked in a mixture containing

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two or more drugs of dependence. In such cases, the prosecution has three options:

iii) They may ascertain the pure quantity of each drug of dependence contained within the mixture, and present the accused on individual counts of trafficking in the quantity of each drug ascertained (with each count relating to one of the drugs found); or

iv) They may select just one of the drugs of dependence within the mixture, and if the quantity of the mixture is a commercial or a large commercial quantity in relation to the selected drug3, present the accused on a single count of trafficking in a commercial or large commercial quantity of that drug; or

v) They may aggregate the quantity of each drug of dependence within the mixture (see “Aggregating Quantities” below), and if the aggregate quantity of those drugs is not less than an “aggregated commercial quantity” or an “aggregated large commercial quantity” (as defined in s70), present the accused on a single count of trafficking in an aggregated commercial or large commercial quantity (R v Ahmed (2007) 17 VR 454 per Nettle JA).

93. In such a case, the accused must not be charged with (or convicted of) separate trafficking offences for each of the drugs of dependence contained within the mixture, using the quantity of the mixture as the relevant measure (R v Ahmed (2007) 17 VR 454).4

Determining Quantity

94. For most drugs of dependence, the relevant quantities are specified by weight. In determining the weight of a drug, it is appropriate to make the measurement in light of the conditions existing at the time that the offence is seen to have been committed (R v Coviello (1995)

3 As ascertained from Columns 2A and 1B of Part 3 of Schedule 11.4 For example, if it is alleged that the accused had one 500g mixture, containing 230g of pure heroin, 220g of pure cocaine and 50g of pure methylamphetamine, the accused must not be charged with 3 counts of trafficking in a commercial quantity of drugs (one based on having a 500g mixture that contains heroin, another based on having a 500g mixture that contains cocaine, and a third based on having a 500g mixture that contains methylamphetamine). Instead, s/he should either be charged with:

Three counts of trafficking in a drug of dependence (one based on having 230g of heroin, the second based on having 220g of cocaine, and the third based on having 50g of methylamphetamine); or

One count of trafficking in a commercial quantity of either heroin, cocaine or methylamphetamine (based on having a 500g mixture that contains the selected drug); or

One count of trafficking in an aggregated commercial quantity of heroin, cocaine and methylamphetamine.

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81 A Crim R 293 (Vic CCA)).

95. In relation to cannabis, this means that if a crop was “green” at the relevant time, it is the weight of the drug in such a condition which is to be measured. The quantity is not what it would be when dried, even though the drug only becomes usable when in that condition (R v Coviello (1995) 81 A Crim R 293 (Vic CCA)).

96. The quantity of Cannabis L can be determined either by weight or by the number of plants (Part 2 of Schedule Eleven). The word “plant” has been held to be an ordinary English word. Expert evidence about its meaning is therefore inadmissible (R v Francis-Wright (2005) 11 VR 354).

97. Although the word “plant” is an ordinary English word, the jury should not be left at large to determine its meaning, because it is capable of a wide range of interpretations. Where relevant to the issues in the trial, the judge must tell the jury the meaning of the word in its statutory context (R v Francis-Wright (2005) 11 VR 354).

98. For offences committed after 1 May 2007, a “narcotic plant” is defined as including a cutting of a narcotic plant, whether or not the cutting has roots. This reverses the common law position that applied prior to 1 May 2007, which held that a cutting of cannabis becomes a plant when it develops a root, though it did not need to be viable. Once a cutting becomes a plant, it continues to be a plant, even if it dies (Drugs, Poisons and Controlled Substances (Amendment) Act 2006 s8; R v Francis-Wright (2005) 11 VR 354).

99. In relation to trafficking by “possession for sale” under s70(1), the relevant quantity is the quantity of drugs possessed for sale, not simply the quantity of drugs possessed. If it can be shown that a portion of the drugs possessed by the accused was not for sale, that portion should not be included when determining the relevant quantity (R v Coviello (1995) 81 A Crim R 293 (Vic CCA); R v Francis-Wright (2005) 11 VR 354).

100. It may be possible for the jury to infer from the lack of usability of a portion of drugs that the unusable portion was not possessed for sale (see “Possessing a Drug of Dependence for Sale” above). If the jury finds this to be the case, then the unusable portion of drugs should not be included in a calculation of the quantity of drugs possessed for sale. This is a question of fact for determination by the jury based on all of the relevant evidence (R v Coviello (1995) 81 A Crim R 293 (Vic CCA. Although an unusable portion of drugs may not be possessed for sale, it will still be classified as a drug of dependence. See “Drug of Dependence” above)).

101. Section 120 of the Drugs Act provides that a certificate purporting to be signed by an analyst or botanist with respect to any analysis or examination they have made shall be sufficient evidence of the quantity of the substance analysed or examined. See the section “Drug of Dependence” above for a more detailed discussion of s120.

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Aggregating Quantities

102. Sections 71 and 71AA both state that the specified quantities can be comprised of “2 or more drugs of dependence”. Similarly, the definitions of “commercial quantity” and “large commercial quantity” in s70(1) both include “aggregated” quantities of 2 or more drugs. It is therefore possible to add together quantities of different drugs when determining whether the accused has trafficked in the specified amount.

103. The process for aggregating the quantities of 2 or more drugs of dependence is set out in the definitions of “aggregated commercial quantity” and “aggregated large commercial quantity” in s70(1). These definitions were recently amended by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, with the new definitions commencing operation on 1 May 2007 unless proclaimed earlier.

104. In relation to a Giretti count of trafficking, in some cases it may be possible for the jury to aggregate a number of small quantities of drugs sold over a long period of time, to establish that a commercial or large commercial quantity was trafficked. This will only be permissible if each sale formed part of the same criminal enterprise (Giretti v R (1986) 24 A Crim R 112; R v Hamzy (1994) 74 A Crim R 341(NSWCCA); R v Komljenovic (1994) 76 A Crim R 521; R v McCulloch (2009) 21 VR 340; Le v R [2011] VSCA 42; Mustica v R (2011) 31 VR 367).

105. While in many such cases it is likely to be difficult to establish the precise quantities sold over time, the jury may examine the frequency of dealing and the nature of the business conducted, together with the proceeds of the trade, to assess the quantity sold over the relevant period (R v Komljenovic (1994) 76 A Crim R 521).

106. The prosecution only needs to establish that not less than the specified amount was trafficked over the relevant period of time. They do not need to establish the precise amount trafficked (R v Komljenovic (1994) 76 A Crim R 521).

107. The jury does not need to unanimously agree that specific transactions took place. The jury only needs to be unanimous in concluding, beyond reasonable doubt, that the accused had trafficked in not less than the specified quantity (Le v R [2011] VSCA 42; Mustica v R (2011) 31 VR 367).

108. If the jury is permitted to add together quantities of drugs sold over time, the jury should be directed in a way that helps them to avoid impermissible aggregation. For example, if it is alleged that the accused possessed drugs for sale and offered those same drugs for sale, the jury should be directed not to count the same drugs twice (R v Hamzy (1994) 74 A Crim R 341 (NSWCCA)).

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Intention to Traffick in a Particular Quantity

109. Because the offences specified in ss71 (trafficking in a large commercial quantity) and 71AA (trafficking in a commercial quantity) are defined by quantities, to convict a person of these offences they must be shown to have intended to traffick in not less than the specified quantity of the relevant drug (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; Mustica v R (2011) 31 VR 367).

110. The accused must have had this intention at the time he or she committed the relevant act of trafficking (Mustica v R (2011) 31 VR 367; R v McCulloch (2009) 21 VR 340).

111. It is not sufficient for the prosecution to prove that the accused intended to traffick in a drug of dependence which in fact weighed the specified amount, or to traffick in an amount which “might approximate” the specified quantity. The intention must be to traffick at least the specified quantity (R v Garlick (No.2) (2007) 15 VR 388).5

112. This does not mean that the accused must have known what the legal threshold was, or what the actual weight or number of the plants cultivated was. The question is whether the accused intended to cultivate a weight or number of plants that was at least the weight or number specified in Schedule Eleven of the Drugs Act (R v Garlick (No.2) (2007) 15 VR 388).

113. This intention can be proved in the same way as is explained in the section “Intention to Traffick in a Drug of Dependence” above. That is, it can be proved directly or by inferences. An inference can be drawn from a state of mind that is less than knowledge, such as proof that the accused was aware that there was a significant or real chance that the amount of drug trafficked was not less than the specified quantity (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 54; Mustica v R (2011) 31 VR 367).

114. Whether an inference of intention to traffick in not less than the specified quantity can be drawn is a question of fact for the jury to determine based on all of the facts and circumstances. Such an inference should not be drawn if any other inference is reasonably open (R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299; R v Bui [2005] VSCA 300; R v Page [2008] VSCA 54).

115. In charging the jury on this issue, judges should follow as nearly as possible the language used in R v Nguyen; DPP Reference (No 1 of 2004) (Vic) (2005) 12 VR 299. In particular, care must be taken to ensure that the phrase “is capable of sustaining the inference” is used whenever reference is made in this context to proof of belief “in a significant or real chance” (R v Page [2008] VSCA 54).

5 While R v Garlick (No.2) (2007) 15 VR 388 involved a case of cultivation of a commercial quantity of a narcotic plant contrary to s72A of the Drugs Act, it is likely that the same principles apply to trafficking in a drug of dependence.

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Giretti Trafficking and Intention to Traffick in a Quantity

116. The need to prove that the accused intended to traffick in not less than the specified quantity at the time he or she committed the relevant act of trafficking can create difficulties where the accused is charged with carrying on a trafficking business (Giretti trafficking).

117. Proof that the accused carried on a business of trafficking can established by evidence of acts that took place after the accused formed the intention to traffick in an amount that would exceed the specified quantity. The prosecution cannot rely on conduct that pre-dates the formation of the relevant intention (Mustica v R (2011) 31 VR 367; R v McCulloch (2009) 21 VR 340; Finn v R [2011] VSCA 273).

118. This intention can be proved directly or by inferences. For example, an inference can be drawn from proof that, when the accused set up the trafficking business, he or she was aware that there was a significant or real chance that the amount trafficked over the specified period of time would exceed the designated amount (Mustica v R (2011) 31 VR 367).

119. In determining whether the accused had the requisite intention, the jury may take into account matters such as the frequency of dealings from the outset, the size of individual dealings, the number of dealings and the period of time over which the dealings took place (Mustica v R (2011) 31 VR 367).6

120. Due to the difficulties in proving that the accused had this intention at the outset of the dealings, instead of charging an accused with Giretti trafficking, it may be desirable to charge the accused with a number of counts of trafficking simpliciter, selecting the instances which involve larger quantities (Mustica v R (2011) 31 VR 367).

Trafficking to a Child

121. Section 71AB requires the prosecution to prove that the accused trafficked to a child. “Child” is defined in s70(1) to be person under the age of 18.

122. Although it has not been determined, it seems likely, following the principles set down in He Kaw Teh v R (1985) 157 CLR 523, that the accused must have intended to traffick to a child. This intention can be proved in the way explained in the section “Intention to Traffick in a Drug of Dependence” above. For example, the jury could infer this intention from proof that the accused was aware that there was a significant or real chance that the person to whom they trafficked was under the age of 18.

6 For example, the jury may find from evidence showing that the accused supplied drugs on a regular basis to a certain person that he or she had a ‘contract’ to do so. If the jury find that this contract existed at the time the trafficking business was established, they may be able to infer from that fact that, from the outset, the accused intended to traffick in at least the specified amount.

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Possession of a “Traffickable Quantity” of Drugs

123. Section 73(2) of the Drugs Act states that where a person has in their possession not less than a “traffickable quantity” of a drug of dependence, the fact of possession provides prima facie evidence of trafficking.

124. “Traffickable quantity” is defined in s70(1) of the Drugs Act to mean:

The quantity of drugs, or the number of plants, specified in column 3 of Parts 1 and 2 of Schedule Eleven; and

The quantity of drugs, including any other substances in which they are contained or with which they are mixed, specified in column 3 of Part 3 of Schedule Eleven.7

125. For the purposes of s73(2), “possession” of a traffickable quantity must be established by proving possession at common law. Section 5 of the Act, which deems the accused to be in possession of a drug in certain circumstances, does not does not apply to possession for the purpose of s73(2) (see Momcilovic v R (2011) 245 CLR 1 per French CJ and Crennan and Kiefel JJ).

126. Different drugs cannot be aggregated to determine whether the accused has a “traffickable quantity” of drugs under s73(2), as neither s73(2) nor the definition of “traffickable quantity” provide for such aggregation.

127. Section 73(2) is not to be read as providing that possession of a traffickable quantity of a drug of dependence is prima facie evidence of trafficking in all of the possible ways in which one may traffick (i.e., all of the ways specified in s70(1)). It is only prima facie evidence of trafficking in a way which is consistent with the evidence. So if, for example, the evidence showed that the person did not manufacture the relevant drug, possession of a traffickable quantity would not be prima facie evidence of trafficking by manufacturing a drug of dependence (R v Clarke and Johnstone [1986] VR 643).

128. The fact that the accused is found to be in possession of a traffickable quantity of a drug of dependence is not conclusive proof that they were trafficking in that drug – it is merely prima facie evidence. This means that while the accused can be convicted based on proof of this fact alone, it is still for the jury to decide, on the whole of the evidence, whether they are satisfied beyond reasonable doubt that the accused trafficked in the way alleged (R v Clarke and Johnstone [1986] VR 643; R v Raiacovici (1993) 70 A Crim R 46; R v Tran [2007] VSCA 19; Momcilovic v R (2011) 245 CLR 1 per Bell J).

129. The jury should therefore be directed that:

If they are satisfied that the accused possessed a traffickable 7 This definition was recently amended by the Drugs, Poisons and Controlled Substances (Amendment) Act 2006, with the new definition commencing operation on 1 May 2007 unless proclaimed earlier.

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quantity of drugs, that would be sufficient in the absence of evidence to the contrary to convict the accused;

While they can use uncontradicted evidence that the accused possessed a traffickable quantity of drugs to convict the accused, they are only entitled to do so if that evidence, either by itself or in conjunction with other evidence, satisfies them beyond reasonable doubt that the accused is guilty of trafficking; and

They therefore need to look at all of the evidence, including the fact that the accused possessed a traffickable quantity of drugs, and consider whether they are satisfied beyond reasonable doubt that the accused trafficked in the way alleged (e.g. by having a drug of dependence in possession for sale) (see, e.g., R v Stavropoulos and Zamouzaris (1990) 50 A Crim R 315).

130. The extent to which it is necessary to elaborate upon the effect of s73(2) will depend upon the issues in the case. It is not necessary to explain the way in which s73(2) operates if there is no evidence suggesting that the drug in question was possessed other than for trafficking, and it is common ground that it was possessed for this reason (e.g. if the only issue in the case is whether it was the accused or another person who possessed the relevant drug) (R v Clarke and Johnstone [1986] VR 643; R v Tran [2007] VSCA 19).

131. Section 73(2) does not operate to reverse the onus of proof. If the accused denies that he or she was trafficking, it is for the prosecution to prove, beyond reasonable doubt, that the accused was trafficking (R v Clarke and Johnstone [1986] VR 643; Medici v R (1989) 40 A Crim R 413 (Vic CCA)).

Authorisation and Licensing

132. Each of the trafficking offences specifies that a person will be guilty if they traffick in the specified manner, “without being authorised by or licensed under this Act or the regulations to do so”.

133. It has been held that the question of authorisation or licensing is a matter of “exception” or “qualification” for the purposes of s104 of the Drugs Act. This section states that the burden of proving any “matter of exception qualification or defence” lies on the accused. It is therefore for the accused to prove, on the balance of probabilities, that they were appropriately authorised or licensed – rather than being for the prosecution to disprove beyond reasonable doubt (R v Ibrahim (1987) 27 A Crim R 460; Horman v Bingham [1972] VR 29).

134. Provisions concerning authorisation and licensing are contained in Divisions 2 and 4 of the Act respectively.

135. Sections 118 and 119 of the Act contain evidentiary provisions that may be of assistance in cases where there is a dispute about authorisation or licensing.

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Trafficking, Cultivation and Possession

136. A plea in bar is not available unless the elements of two counts are identical or the elements of one are wholly included in another count (Pearce v R (1998) 194 CLR 610; R v Sessions [1998] 2 VR 304; R v Lelah [2002] VSCA 96; R v Langdon (2004) 11 VR 18).

137. A plea in bar is therefore not available in respect of the trafficking and cultivation offences (R v Mason [2006] VSCA 55; R v Nguyen [2006] VSCA 158), nor in relation to trafficking and possession of a drug of dependence (R v Langdon (2004) 11 VR 18; R v Nor (2005) 11 VR 390).

138. However, section 51 of the Interpretation of Legislation 1984 (Vic) prevents a person from being punished more than once for the “same act or omission”. So a person should not be punished twice for the commission of elements that overlap between the different offences (R v Sessions [1998] 2 VR 304; R v Langdon (2004) 11 VR 18; R v Nunno [2008] VSCA 31; R v Filipovic [2008] VSCA 14).

139. If the relevant acts of trafficking, cultivation and/or possession completely overlap, a conviction should only be recorded in relation to one of the offences (R v Langdon (2004) 11 VR 18; R v Filipovic [2008] VSCA 14; Grixti v R [2011] VSCA 220).8

140. However, if the relevant acts are merely “linked” rather than completely overlapping, convictions may be recorded for all counts. The linking of the acts should be reflected in the sentences imposed, rather than in the convictions recorded (R v Nunno [2008] VSCA 31).

141. Whether it is appropriate to include trafficking, cultivation and possession in the presentment, or proceed to verdict and/or sentencing in relation to each of these offences, will depend on the circumstances of the case. The judge should consider whether there is such an overlap in the circumstances of each offence, and the evidence linking the accused to each of them, that it would be oppressive to take verdicts, proceed to conviction or impose a sentence for each (see, e.g., R v Langdon (2004) 11 VR 18; R v Nor (2005) 11 VR 390; R v Nguyen [2006] VSCA 158; R v Nunno [2008] VSCA 31; Grixti v R [2011] VSCA 220).

8 This may occur, for example, where the accused is charged with trafficking and cultivation, and the trafficking charge is based on the fact that the plants were in the accused’s possession for sale (see, e.g., R v Mason [2006] VSCA 55; R v Filipovic [2008] VSCA 14).

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