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A person is not criminally responsible for a Part 9.1 offence if, 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 had the conduct been so justified or excused the conduct would not have constituted the offence. These defences are in addition to the general defences available under the Criminal Code Act 1995 (Cth)  such as involuntary intoxication, age of the offender, or mistake of fact.

Lack of commercial intention defence

Under the new provisions, the marketable quantity and the new tier offences are subject to a defence of ‘lack of commercial intention’. This requires the accused to prove on the balance of probabilities that he or she neither intended to sell any of the drugs, nor believed that another person intended to sell any of the drugs. However, where this defence is raised, and accepted by a jury, Division 307 of the Criminal Code makes provision for an alternative verdict and the accused may be convicted of an offence with a two year penalty or 400 penalty units, or both.

Sections 307.5 to 307.10 provide for offences relating to the possession of border controlled drugs that have been unlawfully imported or are reasonably suspected of having been unlawfully imported.

These offences carry a defence of lack of commercial intention. The defence has two limbs. First, even if the accused intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the drug so manufactured and did not believe that another person intended to sell any of it. Secondly, even if the accused believes that another person intended to manufacture a controlled drug, it is a defence if the accused proves that he or she did not intend to sell any of the precursor to that person.

If the accused follows the lack of commercial intention defence, they may still be liable to be convicted of an offence of possessing a precursor with an intention to manufacture a controlled drug, which carries a penalty of imprisonment for two years or 400 penalty units, or both.

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