What Does the Prosecution Need to Prove?

To establish a charge of trafficking in a controlled drug under section 32(3), the prosecution must prove beyond reasonable doubt that:

1. The substance involved was a controlled drug.
2. The accused knew, or was reckless as to whether, the substance was a controlled drug.
3. The accused trafficked in the drug by selling it, possessing it with the intention of selling it, or taking part in the process of its sale.

For offences under sections 32(2) and 32(1), the prosecution must also establish the relevant commercial or large commercial quantity and the required intention to traffic that quantity.

The prosecution does not need to establish that the accused knew the precise identity or weight of the controlled drug.

Each element must be established to the required criminal standard.

What Are the Maximum Penalties for Drug Trafficking?

The maximum penalties depend on the offence charged, the quantity of drugs and whether aggravating circumstances or serious drug offender provisions apply.

• Trafficking, s 32(3), basic offence: 10 years' imprisonment and/or a $50,000 fine.
• Trafficking in a prescribed area, s 32(2a), basic offence: 15 years' imprisonment and/or a $75,000 fine.
• Trafficking in a commercial quantity, s 32(2), basic offence: 25 years' imprisonment and/or a $200,000 fine.
• Trafficking in a large commercial quantity, s 32(1): life imprisonment and/or a $1,000,000 fine.

The court may impose both imprisonment and a fine.

Where an offence under section 32(3) is aggravated, or the offender meets the statutory definition of a serious drug offender, the maximum increases to 15 years' imprisonment and/or a $75,000 fine.

For commercial quantity offences under section 32(2), the corresponding maximum increases to life imprisonment and/or a $500,000 fine.

For trafficking in a prescribed area under section 32(2a), the maximum rises to 25 years' imprisonment and/or a $200,000 fine where the offence is aggravated or the offender is a serious drug offender.

These are maximum penalties, not mandatory sentences. The sentence imposed will depend upon the circumstances of the offence and the offender.

What is a Commercial Quantity or Large Commercial Quantity of Drugs?

The quantity required for a commercial or large commercial quantity offence depends upon the particular drug.

The prescribed quantities are contained in the Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA).

For example:

• Methamphetamine (ice): commercial quantity 100 g pure or 500 g mixed; large commercial quantity 750 g pure or 1 kg mixed.
• Cocaine: commercial quantity 100 g pure or 200 g mixed; large commercial quantity 750 g pure or 1 kg mixed.

These examples demonstrate why it is important to distinguish between the quantity of a drug in its pure form and the total weight of a mixture containing that drug.

The applicable threshold also depends on how the quantity is alleged in the charge. Laboratory analysis and the prosecution's calculations may be important issues in defending a commercial quantity allegation.

Different thresholds apply to other controlled drugs.

Can I Be Charged with Trafficking if the Drugs Were for Personal Use?

Yes.

Under section 32(5), where the prosecution proves that an accused possessed a trafficable quantity of a controlled drug, the law creates a rebuttable presumption concerning the intention or purpose of sale.

For example, the prescribed trafficable quantity for methamphetamine is 2 grams of a mixture containing the drug.

However, possession of a trafficable quantity does not automatically establish every element of a trafficking offence.

The presumption is rebutted only if the accused proves, on the balance of probabilities, that the drugs were not possessed for the purpose of sale, for example because they were for personal consumption.

Evidence concerning drug dependence, patterns of consumption and the circumstances in which the drugs were found may be relevant.

If the trafficking allegation cannot be established, a lesser possession offence may be available, depending on the evidence.

What Defences Are Available to Drug Trafficking Charges?

The available defences depend on the circumstances of the particular case.

1. Lack of Possession

The accused may dispute having possession or control of the drugs. This can be particularly relevant where drugs are located in a shared home, vehicle or other location accessible to multiple people.

2. No Intention to Sell

Where the charge is based on possession with intent to sell, the accused may contest that intention. If the trafficable quantity presumption applies, the accused must prove, on the balance of probabilities, that the drugs were not for sale.

3. Lack of Knowledge

The accused may dispute knowing, or being reckless as to whether, the substance was a controlled drug.

4. Insufficient Evidence of Participation

Where a person is accused of participating in a drug sale, the prosecution must establish their relevant involvement. Mere association with someone involved in drug trafficking is not necessarily sufficient.

5. Disputing the Quantity of Drugs

For commercial and large commercial quantity offences, the drug quantity is an essential issue. The defence may examine the forensic analysis, purity, weight, calculations and evidence concerning the quantity allegedly trafficked.

6. Unlawfully Obtained Evidence

A lawyer may challenge the legality of police searches, seizures or investigative procedures. In appropriate circumstances, an application may be made to exclude evidence.

Other defences, including duress, may arise depending on the facts.

Can I Be Charged with Trafficking Without Being Caught Selling Drugs?

Yes.

Police do not need to observe an actual drug transaction to lay a trafficking charge.

A charge may be based upon possession of drugs with intent to sell, communications concerning proposed sales or evidence of participation in the selling process.

However, the prosecution must still establish the elements of the particular offence, subject to any applicable statutory presumptions.

What is an Aggravated Drug Trafficking Offence?

An aggravated offence under section 43 of the Controlled Substances Act 1984 (SA) can arise where trafficking is committed for the benefit of, at the direction of, or in association with a criminal organisation, or in other circumstances involving identification with such an organisation specified by the legislation.

The Act also imposes higher maximum penalties on people who meet the statutory definition of a serious drug offender, which depends on qualifying previous convictions.

These provisions can significantly increase the potential sentence.

Which Court Will Hear My Drug Trafficking Charge?

Serious trafficking charges generally commence in the Magistrates Court before proceeding through the indictable process to a higher court, ordinarily the District Court.

However, section 32(4) provides a particular exception for section 32(3) offences involving only cannabis, cannabis resin or cannabis oil. Those charges must be dealt with by the Magistrates Court as summary offences, subject to the statutory provision for committal to the District Court for sentence where the Magistrates Court considers that imprisonment exceeding five years is appropriate.

The court process will depend on the charge and the circumstances of the case.

Can My House or Other Assets Be Confiscated if I Am Charged with Drug Trafficking?

Potentially.

Under the Criminal Assets Confiscation Act 2005 (SA), authorities may seek orders restraining assets suspected of being connected with criminal activity or otherwise subject to confiscation laws.

These orders may affect:

• Family homes and investment properties;
• Bank accounts and cash;
• Vehicles and other valuable assets;
• Business assets; and
• Other property interests.

Confiscation proceedings are separate from the determination of the criminal charge, and property is not necessarily forfeited merely because a person has been charged.

However, a conviction for trafficking in a commercial or large commercial quantity makes a person a prescribed drug offender. A forfeiture order is then taken to have been made over all property they own or effectively control on the day of conviction, subject to limited exceptions. Repeat convictions for serious drug offences within 10 years can have the same result.

It is important to obtain legal advice about both the criminal allegations and any restraining or forfeiture proceedings.

What Should I Do if Police Are Investigating Me for Drug Trafficking?

If police contact you about a suspected drug trafficking offence, you should seek legal advice before participating in an interview.

A criminal lawyer can advise you about your rights and obligations, including your right to silence and any lawful requirements to provide identifying information or comply with police directions.

Early legal advice can also assist in preserving evidence and preparing for any bail application or court proceedings.