Page 932 - Week 03 - Thursday, 28 February 2013
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intended to go on and commit an aggravated burglary, or engage in a criminal enterprise selling stolen goods, so that they can be convicted of a far more serious offence simply because they could not prove that they did not intend to.
Just imagine the quite foreseeable scenario where a naive and foolish young person, perhaps simply wanting to experiment, finds some instructions on the internet about—this is what I understand from briefings with JACS officials—a relatively straightforward process of making particular drugs with materials that are reasonably readily available at about half the cost of purchasing the final product. They have no intention about selling it, and quite possibly there is no evidence one way or the other about an intention to sell it. It is fundamentally wrong for this place, on behalf of the community, to deem that foolish and naive young person to be a drug dealer unless they can prove that they are not.
I think this is quite an important point, because we know that young people will do these sorts of things. For better or worse, the information is available on the internet, and to presume that someone is now a drug dealer because of that naive experiment is simply wrong.
What is at stake here is a very important principle, a principle we inherited as part of the British common law that has existed for centuries. Further, it is a principle that we recognise as a basic human right protected by our Human Rights Act. I will return to the particular application of the Human Rights Act in a moment.
The right to a fair trial has been lauded by the High Court as “the central thesis of the administration of criminal justice” and “the central prescript of our criminal law”. Part of the right to a fair trial includes a right to the presumption of innocence. The classic statement to describe the right was by Lord Sankey in Woolmington against the DPP in 1935. He said:
Throughout the web of English Criminal Law one golden thread is always to be seen—that it is the duty of a prosecution to prove the prisoner’s guilt …
John Nader QC wrote in the New South Wales Bar Review last year:
The Digest of the Roman Emperor Justinian contains an early statement of the maxim concerning the presumption of innocence. It states … proof falls on the person who alleges, not (on him) who denies.
The maxim of innocent until proven guilty also carries justification since, by the nature of things, negating a fact may not be possible. In the context of this clause it is particularly important to emphasise that reason again: “since, by the nature of things, negating a fact may not be possible”.
Additionally, it is accepted as axiomatic that it is better for a guilty person to go free than for an innocent person to be deprived of their liberty.
In this case, where a person has a small quantity of a controlled precursor, it may well be the case that there is simply no evidence one way or the other of their intentions. In such circumstances, it may be very difficult to prove that in fact it is more likely that
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