CRIMINAL CODE 2002 - SECT 633 Alternative verdicts—mistaken belief about identity of controlled drug, precursor or

CRIMINAL CODE 2002 - SECT 633

    (1)     This section applies if, in a prosecution for an offence against this chapter that involves conduct relating to a trafficable, commercial or large commercial quantity of a controlled drug, precursor or plant, the trier of fact is satisfied that—

        (a)     at the time of the conduct, the defendant had considered, and was under a mistaken belief about, the identity of the controlled drug, precursor or plant; and

        (b)     if the mistaken belief had been correct, the defendant would have committed an offence against this chapter, the Drugs of Dependence Act 1989

, part 10 or the Medicines, Poisons and Therapeutic Goods Act 2008

, chapter 4 for which the maximum penalty is the same as or less than the maximum penalty for the offence charged (the alternative offence ).

    (2)     The trier of fact may find the defendant not guilty of the offence charged but guilty of the alternative offence, but only if the defendant has been given procedural fairness in relation to that finding of guilt.

    (3)     A defendant who claims to have considered, and been under a mistaken belief about, the identity of a drug, precursor or plant must prove that he or she was under that mistaken belief.