Page 1328 - Week 05 - Tuesday, 9 April 2013
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There is a requirement on a judge in a matter to find that the burden has been satisfied. In Chapman v Hains (2008) in the ACT Supreme Court, the court said that the satisfaction of the evidential burden “does not only turn upon his statement that that is the fact, but the surrounding circumstances to which he would point, if correct, would lead to the same result”. (Second speaking period taken.)
Following on from that, the mere assertion of a state of affairs is not sufficient to satisfy the burden. Some evidence must be presented to support the assertion. The reality is that there is no reason why it could not be an evidential burden. Additionally, there is no reason why the offence could not be divided such that possession with intent to manufacture was one offence with a proportionate penalty, and intention to supply was either an additional offence or an aggravating factor with an additional penalty. This would mean that people could be prosecuted for their conduct and convicted where there is sufficient proof to support the conviction without the need for a deeming provision.
One further means of reducing the limitation would be to impose it where a minimum quantity is involved. To argue that this poses any sort of difficulty is ridiculous. The Attorney-General asserts that it being tied to a particular yield, which has never been asserted by anyone, would be very difficult. Already in fact the very offence that we are amending has different levels of seriousness based on the quantity possessed.
The regulations set out hundreds of different quantities of the various substances. There is no reason that those tables could not be used in relation to the presumption. It is clear that there are a range of other options available to address the issue. What these other options help to demonstrate is that this provision does limit the right more than is reasonably necessary and that it is not within an acceptable band of available limitations.
The fourth and final element identified by Justice Penfold and the question she posed was:
Is the limit imposed on the human right proportional to the importance of the purpose?
To evaluate the proportionality of the clause, we need to consider the importance of the right being protected, the effectiveness of the limitation and the importance of the end it seeks to achieve and its effectiveness in achieving it.
Looking first at the scale of the limitation and the extent of the right lost to the new presumption, the Victorian Court of Appeal characterised the limitation in relation to the trafficking offence as follows:
Nor, in our view, did the arguments advanced come close to justifying the infringement of the presumption in relation to the trafficking offence.
The Attorney-General will seek to distinguish the Momcilovic case because there are two presumptions at issue there. However, it is important to be very clear that the
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