Page 1329 - Week 05 - Tuesday, 9 April 2013
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Victorian Court of Appeal unanimously found that the presumption in relation to trafficking was incompatible with the Human Rights Act.
It is also important to remember that what we are doing is in fact worse than what was the case in Momcilovic, because here the presumption applies to possession of any quantity. In Momcilovic, a trafficable quantity was required to enliven the presumption. The fact that, in this instance, someone has committed a lesser offence in order to be caught up in the net now cast is not really relevant. This is a point on which the Attorney-General has much relied, and yet I believe there is no logical connection.
To illustrate the point, section 366 of the code relates to the receipt of stolen goods and provides that if a person received four or more items of stolen property they are presumed to know the goods are stolen, and an evidential burden is imposed. There is some connection to the volume, although even then I would say it is a little tenuous. Nevertheless, there is some connection between the volume of activity and the conduct which the statute deems to have occurred. Even then, only an evidential burden is imposed.
Perhaps the attorney would say in reply that this is a more serious offence. Indeed, he has made much of the fact that this provision is part of the serious drug offences provisions. The best response to this is to quote Justice Sachs of the Constitutional Court of South Africa, who said:
The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justifactory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, house-breaking, drug-smuggling, and corruption … the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial cases.
Moving on from that quote, the assertion about seriousness simply ignores the fact that there is a well-recognised difference between manufacturing drugs for personal use and doing so for distribution. Further, in favour of proportionality, the Attorney-General argues that knowledge is within the purview of the defendant, and evidence will be best available to the defendant.
Again, this does nothing to address the issue. As the maxim of the presumption of innocence goes, it is necessary since, by the nature of things, it may not be possible to disprove an asserted fact. Anyone can say that they have a drug habit. Evidence to support that may be very difficult to adduce. People involved are not going to be keen to say, “Yes, I’ve sold that person heaps of drugs in the past,” or, “Yes, we do drugs together all the time.”
It is worth considering the comments of the Chief Justice of the Supreme Court of New Zealand, who found, also in the context of a deemed drug offence:
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