Document ID: chunk:federal_register_of_legislation:C2005A00129:clause:1_1:p41
Version: federal_register_of_legislation:C2005A00129
Segment Type: clause
Provision Reference: sch 1 cl 1 (pt 41/42)
Character Range: 109901–113052

not greater than the maximum penalty for the alleged offence;
the trier of fact may find the defendant not guilty of the alleged offence but guilty of the other offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

313.4  Alternative verdict—mistake as to quantity 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 commercial quantity or a marketable quantity of 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 quantity 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).

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).

Division 314—Drugs, plants, precursors and quantities

314.1  Controlled drugs

 (1) The following table lists controlled drugs and sets out quantities:

Controlled drugs and quantities
                                 Controlled drug                                                                                                                            Trafficable quantity  Marketable quantity  Commercial quantity
                                                                                                                                                                            (grams)               (grams)              (kilograms)