Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3


Part 9.1 - Serious drug offences  

Division 313 - Defences and alternative verdicts  

SECTION 313.5   Alternative verdict - mistake as to identity of drug, plant or precursor  

This section applies if:

(a) an offence against this Part (other than Division 307 ) is prosecuted; and

(b) the offence involves a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and

(c) the trier of fact would, apart from this section, have found the defendant guilty of the offence.


(a) the defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the identity of the drug, plant or precursor; and

(b) if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and

(c) the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;

the trier of fact may find the defendant:

(d) not guilty of the alleged offence; but

(e) guilty of the other offence.


A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4 ).

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