The prosecution may prove an offence against Subdivision C of Division 307 (possessing border controlled drugs or border controlled plants reasonably suspected of having been unlawfully imported) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was possessed by the defendant during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
311.16 Multiple offences—importing or exporting border controlled precursors
The prosecution may prove an offence against Subdivision D of Division 307 (importing and exporting border controlled precursors) by proving:
(a) that the defendant committed offences against that Subdivision on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled precursor, or of a combination of border controlled precursors, was imported or exported during the commission of those offences.
Note: See section 312.2 for working out quantities where different kinds of border controlled precursors are involved.
311.17 Multiple offences—supplying controlled drugs to children for trafficking
The prosecution may prove an offence against section 309.3 (supplying marketable quantities of controlled drugs to children for trafficking) by proving:
(a) that the defendant committed offences against section 309.4 (supplying controlled drugs to children for trafficking) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was supplied during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.18 Multiple offences—procuring children for trafficking controlled drugs
The prosecution may prove an offence against section 309.7 (procuring children for trafficking marketable quantities of controlled drugs) by proving:
(a) that the defendant committed offences against section 309.8 (procuring children for trafficking controlled drugs) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled drug, or of a combination of controlled drugs, was trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled drugs are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.19 Multiple offences—procuring children for pre‑trafficking controlled precursors
The prosecution may prove an offence against section 309.10 (procuring children for pre‑trafficking marketable quantities of controlled precursors) by proving:
(a) that the defendant committed offences against section 309.11 (procuring children for pre‑trafficking controlled precursors) on different occasions; and
(b) that each of those offences was committed within a period of not more than 7 days from another of those offences; and
(c) that the relevant quantity (in sum) of a controlled precursor, or of a combination of controlled precursors, was pre‑trafficked during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.20 Multiple offences—procuring children for importing or exporting border controlled drugs or border controlled plants
The prosecution may prove an offence against section 309.12 (procuring children for importing or exporting marketable quantities of border controlled drugs or border controlled plants) by proving:
(a) that the defendant committed offences against section 309.13 (procuring children for importing or exporting border controlled drugs or border controlled plants) on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled drug or border controlled plant or both, or of a combination of border controlled drugs or border controlled plants or both, was imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of border controlled drugs or border controlled plants are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.21 Multiple offences—procuring children for importing or exporting border controlled precursors
The prosecution may prove an offence against section 309.14 (procuring children for importing or exporting marketable quantities of border controlled precursors) by proving:
(a) that the defendant committed offences against section 309.15 (procuring children for importing or exporting border controlled precursors) on different occasions; and
(b) that each of those offences was committed within a period of not more than 30 days from another of those offences; and
(c) that the relevant quantity (in sum) of a border controlled precursor, or of a combination of border controlled precursors, was imported or exported during the commission of those offences.
Note 1: See section 312.2 for working out quantities where different kinds of border controlled precursors are involved.
Note 2: Section 313.4 provides a partial defence in relation to the matter in paragraph (c).
311.22 General rules—combining parcels from multiple offences
(1) If the prosecution intends to rely on a section of this Subdivision, the particulars of the offences alleged to have been committed on the different occasions must be set out in the charge.
(2) The same parcel of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors must not be counted more than once for the purposes of this Subdivision.
Example: A person is in possession of a quantity of a controlled drug for sale on one day (the first occasion) and sells that particular quantity the next day (the second occasion). Only the quantity trafficked on one of those occasions may be counted.
(3) This Subdivision does not prevent a person being charged with separate offences in respect of conduct on different occasions.
Division 312—Working out quantities of drugs, plants or precursors
312.1 Working out quantities of drugs and precursors in mixtures
(1) If an alleged offence against this Part involves a quantity of a controlled drug in a mixture of substances, the prosecution may prove the quantity of the controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form of the controlled drug; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12, for the controlled drug in a mixture—by proving that quantity of the mixture.
(2) If an alleged offence against this Part involves a quantity of a controlled precursor in a mixture of substances, the prosecution may prove the quantity of the controlled precursor involved by proving that the mixture contains that quantity of the pure form of the controlled precursor.
(3) If an alleged offence against this Part involves a quantity of a border controlled drug in a mixture of substances, the prosecution may prove the quantity of the border controlled drug involved:
(a) by proving that the mixture contains that quantity of the pure form of the border controlled drug; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10 or 301.11, for the border controlled drug in a mixture—by proving that quantity of the mixture.
(4) If an alleged offence against this Part involves a quantity of a border controlled precursor in a mixture of substances, the prosecution may prove the quantity of the border controlled precursor involved by proving that the mixture contains that quantity of the pure form of the border controlled precursor.
312.2 Working out quantities where different kinds of drugs, plants or precursors are involved
(1) This section applies if a person is charged with a single offence against this Part that involves:
(a) trafficking in more than one kind of controlled drug; or
(b) cultivating more than one kind of controlled plant; or
(c) selling more than one kind of controlled plant; or
(d) manufacturing more than one kind of controlled drug; or
(e) pre‑trafficking in more than one kind of controlled precursor; or
(f) importing or exporting more than one kind of border controlled drug or border controlled plant; or
(g) possessing more than one kind of unlawfully imported border controlled drug or border controlled plant; or
(h) possessing more than one kind of border controlled drug or border controlled plant reasonably suspected of having been unlawfully imported; or
(i) importing or exporting more than one kind of border controlled precursor; or
(j) supplying more than one kind of controlled drug to a child for trafficking; or
(k) procuring a child to traffic in more than one kind of controlled drug; or
(l) procuring a child to pre‑traffic in more than one kind of controlled precursor; or
(m) procuring a child to import or export more than one kind of border controlled drug or border controlled plant; or
(n) procuring a child to import or export more than one kind of border controlled precursor.
(2) The following apply for the purposes of working out the quantity of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors involved in the offence:
(a) the quantity of the drugs or plants is a trafficable quantity if the sum of the requisite fractions of the trafficable quantity of each of those drugs or plants is equal to or greater than one;
(b) the quantity of drugs, plants or precursors is a marketable quantity if the sum of the requisite fractions of the marketable quantity of each of those drugs, plants or precursors is equal to or greater than one;
(c) the quantity of drugs, plants or precursors is a commercial quantity if the sum of the requisite fractions of the commercial quantity of each of those drugs, plants or precursors is equal to or greater than one.
(3) For the purposes of this Part, requisite fraction means:
(a) in relation to a trafficable quantity of a controlled drug or controlled plant, the actual quantity of the drug or plant divided by the smallest trafficable quantity of the drug or plant; or
(b) in relation to a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor divided by the smallest marketable quantity of the drug, plant or precursor; or
(c) in relation to a commercial quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, the actual quantity of the drug, plant or precursor divided by the smallest commercial quantity of the drug, plant or precursor.
(4) If this section applies in relation to a controlled drug in a mixture of substances, the requisite fraction of a trafficable, marketable or commercial quantity of the controlled drug may be calculated:
(a) on the basis of the quantity of the controlled drug in pure form; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10, 301.11 or 301.12, for the controlled drug in a mixture—on the basis of the quantity of the mixture.
(5) If this section applies in relation to a border controlled drug in a mixture of substances, the requisite fraction of a marketable or commercial quantity of the border controlled drug may be calculated:
(a) on the basis of the quantity of the border controlled drug in pure form; or
(b) if such a quantity is specified, in regulations made for the purposes of item 1 of the table in section 301.10 or 301.11, for the border controlled drug in a mixture—on the basis of the quantity of the mixture.
Division 313—Defences and alternative verdicts
313.1 Defence—conduct justified or excused by or under a law of a State or Territory
This Part, other than Division 307, does not apply in relation to conduct if:
(a) a person engages in the conduct in a State or Territory; and
(b) the conduct is justified or excused by or under a law of that State or Territory.
Note 1: A defendant bears an evidential burden in relation to the matters in this section (see subsection 13.3(3)).
Note 2: A person is not criminally responsible for an offence against this Part if the person’s conduct is justified or excused by or under another Commonwealth law (see section 10.5). In 2005, Commonwealth laws that authorised importation, possession or use of controlled drugs, controlled plants, controlled precursors, border controlled drugs, border controlled plants or border controlled precursors included the Customs Act 1901, the Narcotic Drugs Act 1967 and the Crimes Act 1914.
313.2 Defence—reasonable belief that conduct is justified or excused by or under a law
A person is not criminally responsible for an offence against this Part if:
(a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).
313.3 Alternative verdict—offence not proved
If:
(a) in a prosecution for an offence against this Part, the trier of fact:
(i) is not satisfied that the defendant is guilty of the alleged offence; but
(ii) is satisfied, beyond reasonable doubt, that the defendant is guilty of another offence against this Part; and
(b) the maximum penalty for the other offence is not greater than the maximum penalty for the alleged offence;
the trier of fact may find the defendant not guilty of the alleged offence but guilty of the other offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
313.4 Alternative verdict—mistake as to quantity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part (other than Division 307) is prosecuted; and
(b) the offence involves a commercial quantity or a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and
(c) the trier of fact would, apart from this section, have found the defendant guilty of the offence.
(2) If:
(a) the defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the quantity of the drug, plant or precursor; and
(b) if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4).
313.5 Alternative verdict—mistake as to identity of drug, plant or precursor
(1) This section applies if:
(a) an offence against this Part (other than Division 307) is prosecuted; and
(b) the offence involves a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and
(c) the trier of fact would, apart from this section, have found the defendant guilty of the offence.
(2) If:
(a) 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, plant or precursor; and
(b) if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and
(c) the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d) not guilty of the alleged offence; but
(e) guilty of the other offence.
Note: A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4).
Part 9.2—Psychoactive substances
Division 320—Psychoactive substances
320.1 Definitions
(1) In this Part:
consume, in relation to a substance, includes:
(a) ingest the substance; and
(b) inject the substance; and
(c) inhale the substance; and
(d) smoke the substance, or inhale fumes caused by heating or burning the substance; and