Knowledge that a commercial quantity of a prohibited drug is involved is an essential element of the offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and failure to direct the jury on this element is a serious omission likely to constitute a miscarriage of justice. In joint criminal enterprise drug cases, the mere presence of an accused with a co-offender, combined with lies to police, is insufficient to establish guilt beyond reasonable doubt where the lies are equally explicable on the basis of awareness of another's criminal activity rather than personal participation.
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