Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants
Examples of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants
- Having a border-controlled substance, such as cannabis, in a suitcase at an airport;
- Having a border-controlled substance, such as cannabis, in a shipping container;
What is the legal definition of Possessing Marketable Quantities of Unlawfully Imported Border Controlled Drugs or Border Controlled Plants?Section 301.4 of the Criminal Code defines a ‘border-controlled drug’ as:
- listed by a regulation as a border-controlled drug; or
- a drug analogue of a listed border-controlled drug; or
- determined by the AFP Minister as a border-controlled drug under section 301.13 (which deals with emergency determinations of serious drugs)
LegislationThe legislation for this offence can be found on section 307.6 of Criminal Code Act 1995.
Elements of the offenceThe Prosecution must prove the following elements beyond reasonable doubt to establish this offence:
- the person imports or exports a substance; and
- the substance is a border-controlled drug or border-controlled plant; and
- the quantity imported or exported is a marketable quantity.
13.5 Standard of proof – defence
“Can the Prosecution prove that you were in possession of a marketable quantity of a controlled substance?”
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
- Lack of knowledge;
- The accused did not possess the substance; or
- There is a factual dispute as to the quantity of the substance imported.
Questions in cases like this
- Were you aware that you were in possession of a marketable quantity of a border-controlled substance?
- Where was the border-controlled substance located?
- What is the quantity of the border-controlled substance?
Questions the Judge Might Ask the Jury
- Are you satisfied that the amount of border-controlled substance was a marketable quantity?
- Are you satisfied, on the balance of probabilities, that the accused did not intend to sell the border-controlled substance?
- Are you satisfied that the accused was reckless as to the substance being a border-controlled drug or border controlled plant?
- Are you satisfied that one drug is a chemical derivative of a listed prohibited drug? It will require expert evidence which will examine 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;  TASCCA 4; Clegg v Western Australia (No 2)  WASCA 30).1
Any person found guilty of (s307.6 of the Commonwealth Criminal Code) may be sentenced to a maximum penalty of imprisonment for 25 years or a fine of 5,000 penalty units, or both.