Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 9 - DANGERS TO THE COMMUNITY  

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  

(1)  
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.

(2)  
If:


(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.

Note:

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




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