Page 937 - Week 03 - Thursday, 28 February 2013
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draconian provision; they are people who have put themselves in a position where a provision designed to attack organised crime and disrupt the manufacture and supply of drugs applies to them.
In cases where small quantities of a precursor are found, it will be easier to raise sufficient evidence to establish on the balance of probabilities that the drugs are for personal use and that the person has no intention of selling them. However, the quantity of the precursor a person is found with is not the only consideration a court will take into account. Evidence about a defendant’s drug use patterns will also be relevant. Much of this information will only be available to the defendant, so it is appropriate to require them to present this evidence. This strikes, in the government’s view, the right balance between the need to support the enforceability of the offence where a person is dealing with even small quantities of a controlled precursor for the purposes of drug trafficking and a defendant’s ability to exonerate themselves.
The recent scrutiny of bills committee in its report No 2 asked whether the less restrictive option of placing only an evidential burden of proof on a defendant instead of a legal burden of proof would serve the same purpose without the same limitation on the presumption of innocence. I refer members to my response to this question, which was published in report No 3 of the scrutiny of bills committee on 25 February this year. The essence of my response was that placing an evidential burden would not satisfy the purpose of the proposed amendment, which is to require the defendant to establish something peculiarly within his or her knowledge to facilitate in order to attack organised crime and disrupt the supply and manufacture of illegal drugs.
An evidential burden would allow a defendant to simply state under oath that they intended to use the controlled drugs themselves—end of question. While oaths might be taken seriously by many of us, unfortunately, it is not always the case. With the simple act of making a false oath, the evidential presumption would be rebutted, leaving the prosecution to prove the intention to sell. This is not a satisfactory position and it is not an improvement on the position we currently face.
Again, limiting the application of the presumption to instances where the precursor would yield a trafficable quantity of the controlled drug has also been suggested. This option, although attractive on its face, presents a number of technical and legal difficulties. While it is theoretically possible to calculate the yield of controlled drugs from a controlled precursor, the variables that apply in the real world would undermine any evidence on the question. This approach of limiting the offence to cases where precursors will yield a trafficable amount would have the undesirable effect of significantly complicating an already complex offence. It also fails to recognise that some dealings with precursors for the purpose of drug trafficking will involve small quantities for sale.
Members need to be aware in considering this amendment that there is an increasing trend for organised crime to spread its risk by using a large number of people to each produce small amounts of illegal drugs rather than getting one person to manufacture a large quantity. Members must consider and satisfy themselves that this proposal represents a reasonable and demonstrably justified limitation on the right to be presumed innocent. The government’s view is that it is justified, and for those reasons the government will be asking members to consider that proposal further.
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