Criminal Code Act 1995
Section 3
CHAPTER 9 - DANGERS TO THE COMMUNITY Part 9.1 - Serious drug offences
View history note
Hide history noteDespite subsection 11.1(3) , for the offence of attempting to commit an offence against this Part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted:
(a) that a substance is a controlled drug (a physical element of an offence against Division 302 or 305 or section 308.1 , 309.2 , 309.3 , 309.4 , 309.7 or 309.8 );
(b) that a plant is a controlled plant (a physical element of an offence against Division 303 or 304 );
(c) that a substance is a controlled precursor (a physical element of an offence against Division 306 or section 308.2 , 309.10 or 309.11 );
(d) that a substance is a border controlled drug or border controlled plant (a physical element of an offence against Subdivision A , B or C of Division 307 or section 309.12 or 309.13 );
(e) that a substance is a border controlled precursor (a physical element of an offence against Subdivision D of Division 307 or section 309.14 or 309.15 ).
Note:
Proof of intention, knowledge or recklessness will satisfy a fault element of recklessness: see subsection 5.4(4) .
[
CCH Note:
S 300.7 to 300.9 will be inserted by No 70 of 2026, s 3 and Sch 2 item 2, applicable (a) to an act or thing done in connection with a substance or object before, on or after 26 February 2027; and (b) to a proceeding initiated before, on or after 26 February 2027. S 300.7 to 300.9 will read:
has, at least 42 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.
SECTION 300.7 Evidentiary certificates
]
Issuing a certificate
(1)
A certificate may be issued under this section by any of the following persons (an
issuing officer
):
(a)
a member of the Australian Federal Police (within the meaning of the
Australian Federal Police Act 1979
);
(b)
an officer of Customs (within the meaning of the
Customs Act 1901
) who holds the position, or performs the duties, of an APS Level 6, or an equivalent or higher position;
(c)
a member of the staff of the ACC (within the meaning of the
Australian Crime Commission Act 2002
) who holds the position, or performs the duties, of either a senior investigator or of an Executive Level 1, or an equivalent or higher position, in the Australian Crime Commission;
(d)
a staff member of the NACC (within the meaning of the
National Anti-Corruption Commission Act 2022
) who holds the position, or performs the duties, of an Executive Level 1, or an equivalent or higher position;
(e)
a member of a police force (however described) of a State or Territory;
(f)
a person in a class of persons determined for the purposes of this paragraph under subsection
(4)
.
Acts or things that can be specified in a certificate
(2)
The certificate may specify one or more of the following acts or things in respect of a substance or object containing a substance:
(a)
any detail or description relating to the seizure or detention of the substance or object;
(b)
a label or any other means that is used to identify the substance or object;
(c)
any detail relating to any seal that is used to secure the substance or object;
(d)
any detail related to any transfer of custody of the substance or object;
(e)
any detail related to storage of the substance or object;
(f)
anything done in connection with the substance or object by:
(i)
a law enforcement officer; or
(ii)
a person assisting or providing technical expertise to a law enforcement officer or an agency mentioned in subsection
(3)
;
(g)
any other act or thing determined under subsection
(4)
.
(3)
For the purposes of subparagraph
(2)(f)(ii)
, the agencies are the following:
(a)
the Australian Federal Police;
(b)
a police force (however described) of a State or Territory;
(c)
the Department administered by the Minister administering Part
XII
of the
Customs Act 1901
;
(d)
the Australian Crime Commission;
(e)
the National Anti-Corruption Commission;
(f)
a law enforcement agency (however described) of a foreign country;
(g)
a law enforcement agency prescribed for the purposes of this paragraph.
(4)
The AFP Minister may, by legislative instrument, determine the following:
(a)
a class of persons for the purposes of paragraph (g) of the definition of
law enforcement officer
in section
300.2
;
(b)
a class of persons for the purposes of paragraph
(1)(f)
;
(c)
acts or things for the purposes of paragraph
(2)(g)
.
(5)
The AFP Minister must, before determining a class of persons for the purposes of paragraph
(1)(f)
, be satisfied that the persons in the class have appropriate training, qualifications, skills or experience to issue a certificate under this section.
Documents purporting to be certificates
(6)
A document purporting to be a certificate issued under this section is, unless the contrary is established, taken to be such a certificate and to have been properly given.
Certificate is prima facie evidence of the acts or things in it
(7)
The certificate is to be received in proceedings for an offence against this Part as prima facie evidence of the acts or things specified in the certificate.
SECTION 300.8 Evidentiary certificates issued under State or Territory laws
(1)
This section applies in relation to a certificate (however described) that:
(a)
is issued (however described) under a law of a State or Territory; and
(b)
would be received in proceedings for an offence against a law of the State or Territory as prima facie evidence of the acts or things specified in the certificate.
(2)
If the certificate specifies an act or thing mentioned in subsection
300.7(2)
, the certificate is to be received in proceedings for an offence against this Part as prima facie evidence of the act or thing.
SECTION 300.9 Evidentiary certificates
-
procedural matters
(1)
This section applies in relation to a certificate:
(a)
issued under section
300.7
; or
(b)
to which section
300.8
applies.
(2)
A certificate must not be admitted in evidence in proceedings for an offence against this Part unless:
(a)
the person charged with the offence; or
(b)
a lawyer who has appeared for the person in those proceedings;
(3)
If a certificate is admitted in evidence in proceedings for an offence against this Part, the person charged with the offence (
defendant
) may (subject to subsection
(4)
) require any of the following:
(a)
the person who issued the certificate to be:
(i)
called as a witness for the prosecution; and
(ii)
cross-examined as if the person had given evidence of the acts or things specified in the certificate;
(b)
any person named in the certificate to be:
(i)
called as a witness for the prosecution; and
(ii)
cross-examined as if the person had given evidence of the acts or things specified in the certificate associated with that person.
(4)
However, subsection
(3)
does not entitle the defendant to require a person to be called as a witness for the prosecution or cross-examined unless:
(a)
the prosecutor has been given at least 28 days
'
notice of the defendant
'
s intention to require the person to be so called or cross-examined; and
(b)
the court, by order, allows the defendant to require the person to be so called or cross-examined.
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