The Law Handbook 2024

140 SECTION 3: Fines, infringements and criminal law of ‘continuity’. This is usually done by evidence being given by the various persons who handled the drugs. Market value Section 122Aof theDPCSAct provides that evidence may be given by persons with certain experience as to the market (or ‘street’) value of a drug. This evidence will be deemed to be conclusive unless contrary evidence is provided. The market value of a drug is relevant as it relates to the penalty imposed, and may be indicative of whether or not the accused was trafficking (see R v Tsolacos (1995) 81 A Crim R 434). Duplicity Where multiple charges are laid from the same facts, the Interpretation of Legislation Act 1984 (Vic) (s 51) prohibits punishment more than once for the same act or omission. The Victorian Supreme Court ruled in Reardon v Baker [1987] VR 877 that where a person is found guilty of trafficking because of being in possession of drugs for the purpose of sale, that person should not also be convicted of possession of those drugs; to do otherwise places the person in double jeopardy for what really constitutes one illegal act (see also R v Chhom Nor [2005] VSCA 46). Between dates or Giretti count In situations where the accused may have committed several separate acts (each, by itself, a separate offence), the prosecution may choose to charge one offence to cover all the separate acts. This is known as a ‘between dates’ or ‘Giretti’ count. This is usually the case where the accused trafficks drugs over time, and makes numerous individual sales of the drug. It is appropriate to view this as one continuous offence occurring over a period of time and charge the accused with only one count of trafficking (see Giretti v The Queen (1986) 24 A Crim R 112). The significant downside of this is that the court will regard the accused as being in the ‘business of trafficking’, with significant sentencing ramifications. If there are only a few separate incidents of trafficking, a Giretti count should not be accepted (this depends on the particular facts of the case). Defence to prima facie case In the absence of further evidence (i.e. evidence from the defence), prima facie evidence may become conclusive proof. Therefore, a person can be convicted based on prima facie evidence. Despite this, the burden of proof beyond reasonable doubt remains upon the prosecution at all times; the statutory provisions regarding prima facie evidence simply make it easier for the prosecution to prove its case. The practical effect of these provisions is that the accused has to give sworn evidence in order to rebut the presumption that they are guilty. Evidence of other witnesses may also be useful. The defence evidence would usually be a denial of trafficking and/or intent to traffick and an explanation for possession or cultivation. The most common explanation is that the drugs were for personal use. Entrapment The defence of entrapment, as recognised by US authorities, is not part of the law of Victoria (see R v Papoulias [1988] VR 858). In the Papoulias case, the accused was convicted of trafficking heroin on the evidence of undercover police officers, to whom he had sold heroin on a number of different occasions. As section 50 of the DPCS Act permits police officers (provided they have been appropriately authorised) to handle drugs without such handling being an illegal act, there was no basis to exclude the police evidence. (Also see R v Te [1998] 3 VR 566.) Bail Under schedule 1 of the Bail Act 1977 (Vic) (‘ Bail Act ’), people charged with certain drug offences lose the presumption of a right to bail. These offences are: • trafficking commercial quantities or large commercial quantities of drugs (ss 71AA(1), 71); • trafficking commercial quantities of drugs for the benefit of, or at the direction of, a criminal organisation (s 71AA(2)); • cultivating narcotic plants in commercial quantities or large commercial quantities (ss 72, 72A). If charged with any of the three offences listed above, the burden is on the accused to show ‘exceptional circumstances’ before they are entitled to bail. Under schedule 2 of the Bail Act, people charged with certain other drug offences must show a ‘compelling reason’ why they should be granted bail. These other drug offences are: • trafficking a drug of dependence to a child (s 71AB);