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What Constitutes the serious criminal offence of drug trafficking at Southport and on the Gold Coast?

The serious criminal law charge of drug trafficking is these days far too quickly proffered against offenders in places like Southport and indeed elsewhere, when in previous years the criminal law offence of supplying drugs would have been preferred.

The spirit of the legislature would not have been in my view to brand low level ‘pot’ users as serious criminal law offenders engaged in drug trafficking, when in reality they have just purchased drugs for themselves, and sold a bit on the side to make a bit of extra money. They are as much a victim of the scourge of drugs as anyone.  From a criminal law policy point of view, if you are a drug user living at Southport on the Gold Coast, and you have purchased a larger volume of marijuana, giving some away, smoking some, but also selling some, you may find yourself charged with drug trafficking. You would be right to question whether the criminal investigators should be focussing their efforts on the bigger fish, but a ‘drug trafficking’ conviction is a ‘drug trafficking’ conviction – and these days it seems as much about statistics anything.

We have seen clients with only 552.5 grams living in very basic accommodation, simply buying enough to sell a bit and smoke a bit. Drug users living on the Gold Coast at Southport fro example, could easily fall into this category. Clearly there are more serious criminal law offenders who are producing the drugs for individuals like this. Drug raids occur regularly, and an occupant may be inclined to just accept that a quantity of drugs found belong to them. Care needs to be taken in these sorts of cases, to get advice from a criminal law expert early, as often the only evidence of trafficking will come from the admissions that are provided by the defendant.

What Qualifies as the Serious Criminal Law offence of Drug Trafficking?

The following passage from the Supreme Court Benchbook outlines what is required for carrying on the business of trafficking:

“Generally speaking, a single sale may be proved to have been carried out in such circumstances as to show that it was a part of the carrying on of a business.  However, mere occasional sales of the drug could not amount to the carrying on of a business of selling it.  “Carrying on a business” for present purposes signifies much more than a few isolated transactions. The expression connotes a continuous course of conduct engaged in to obtain a reward of a commercial character.  Proof of the carrying on of a business therefore requires the prosecution to establish several transactions done for gain over more than a brief interval.  Repetition of acts, and activities of a commercial nature possessing something of a permanent character, are hallmarks of a business being carried on…”

Connolly J in R v Elhusseini [1988] 2 QdR 442 said,

“Carrying on the business of trafficking in any substance must include all acts which are part of such a business including negotiations for further outlets and it cannot be confined to sales of the substance. True it is the expression “carrying on” in relation to a business implies a degree of continuity and on occasions it has seemed important to identify the intention with which a commercial transaction was carried out in order to see whether it was, or was part of, the carrying on of a business.” There would be many examples of this sort of criminal law enterprise being conducted at Southport and the Gold Coast right now. The key issue is whether there is evidence of carrying on of a business.

McPeherson J later said at 450,

“The expression ‘trafficking’ in a context like s 5 has been held to mean knowingly engaging in the movement of drugs from source to ultimate user….Ordinarily, if not invariably, an element of commercial enterprise is involved…Carrying on business, particularly where the subject matter of that business is goods or services, usually involves a series of activities, such as advertising or promoting the ‘product’ by communicating with prospective buyers; setting up lines of supply; negotiating prices and terms of supply and payment; soliciting and receiving orders, arranging for places and times of delivery, and so on.  Such activities are the res acta or res gestae of business and the indicia of its carrying on.  Invariably they involve conversations because it is scarcely possible to carry on business without communication of some kind.”

Ambrose J in R v Quaile [1988] 2 QdR 103 said that “Proof of the offence involved showing some movement of the drug at the instance of the accused person at the relevant time and that that movement had some commercial connotation.”  More recently, Williams JA in R v Dent [2002] QCA 247 said “Those authorities (Elhusseini, Quaile, Goulden and Antipas etc.) clearly establish that the gravamen of the offence is that of trading for profit in a drug or drugs.”

If a criminal law case such as this took place on the Gold Coast at Southport as must happen regularly, the Police should show “such circumstances as to show that it was a part of the carrying on of a business.  However, mere occasional sales of the drug could not amount to the carrying on of a business of selling it” (R v Elhusseini [1988] 2 QdR 442).

If you have been arrested at Southport or on the Gold Coast for the serious criminal offence of drug trafficking, it is recommended you get advice early from a criminal law specialist. Ideally this should happen before you participate in an interview, but certainly after being charged.



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