Page 1327 - Week 05 - Tuesday, 9 April 2013
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The third element of the test identified by Justice Penfold is:
Does the challenge provision limit the human right concern no more than is reasonably necessary (ss 28(2)(e))?
To be clear, the requirement is not that the clause is the absolute least restrictive means available, just that it is within a reasonable band of means to achieve the legitimate end.
So will this provision limit the right to the presumption no more than is reasonably necessary to address the manufacture and supply of drugs? Again, the answer is no. There are other more targeted means reasonably available for dealing with this type of conduct. The right being limited is a very significant right, and there are alternative ways of regulating the particular conduct without imposing such a serious limitation on the right to the presumption of innocence.
The first option is, of course, to create an evidential burden, as was suggested by the scrutiny committee. The minister did respond to this issue, both directly to the committee and to the Assembly during the in-principle debate. However, that response raised a number of significant issues.
The attorney said:
… 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.
I do not believe—and it is unfortunate for the Attorney-General—that that is the end of the question. The reality is somewhat different, and in fact the statement by the Attorney-General is simply incorrect. The Attorney-General continued:
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.
Having made those remarks, I would put the case: if this were in fact the case, why then would we ever bother having an evidential burden on anything? If it was as futile as the attorney suggested in his comments, there would never be any point to having such a provision. Of course, there are many laws which impose evidential burdens on all manner of issues and, contrary to the attorney’s suggestion, it in fact plays quite a legitimate role in the enforcement of many laws.
The Criminal Code in section 58 sets out:
“Evidential burden”, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
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