In a prosecution for conspiracy to traffic in a controlled drug under ss 11.5(1) and 302.2(1) of the Criminal Code (Cth), the trial judge must not direct the jury about the fault elements applicable to the substantive trafficking offence (including recklessness as to whether the substance is a controlled drug under s 302.2(2)), because the conspiracy provision requires proof of intention to enter the agreement and intention that the offence be committed, which subsumes recklessness. However, such a misdirection does not necessarily preclude application of the proviso where the trial judge expressly confines the recklessness instruction and gives correct directions on the conspiracy elements.
The full text is available to signed-in members, including the 5 later cases that cite this judgment.
1 of the 5 citing cases carry a classified treatment. How each court treated it is available to signed-in members.