Page 1334 - Week 05 - Tuesday, 9 April 2013
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deemed to be in the possession of that person, unless the person satisfies the court to the contrary.
The majority of the court held that section 5 could not be read to apply to the offence at section 71AC using conventional principles of statutory interpretation. However, in considering the operation of section 5, the majority considered that section 5 places a legal burden of proof on the accused to rebut the presumption. Like section 5 of the Victorian drugs act, this new section 612A creates a legal burden on the accused to rebut the presumption that they were in possession of a controlled precursor with the intention of selling any of the manufactured drug or believing that someone else intended to sell any of that drug.
Turning to the issue of Momcilovic, in Momcilovic the court was split. Only three of the High Court justices specifically considered the question of whether the legal presumption at section 5 of the Victorian drugs act was consistent with the Victorian charter of right to the presumption of innocence question. Justices Crennan, Kiefel and Bell determined that section 5 was inconsistent with the rights at section 25(1) of the Victorian charter to the presumption of innocence. However, Chief Justice French and Justices Hayne and Gummow did not provide a position on whether section 5 was compatible with the charter right.
What this highlights is that there is ongoing legal argument, at least in relation to the Australian jurisprudence, as to whether or not presumptions of this nature infringe on the right. What it highlights is that this is an area that is a matter of subjective judgement as to what is a proportionate limitation on the right to provide for the enforceability of an offence. That is the question that we are considering today.
From the government’s perspective, the inclusion of 612A is consistent with the purposes of the serious drug offences in the ACT’s Criminal Code—that is, to disrupt the manufacture and sale of controlled drugs. While the presumption does create a legal burden on the accused, the onus still remains on the prosecution to prove two of the remaining essential elements of the offence—that is, possession of the precursor and possession with the intent to use the precursor for manufacture of a controlled drug.
Equally, the inclusion of a presumption is also consistent with the approach taken by the commonwealth in its drug offences. Like the ACT, the commonwealth Criminal Code Act 1995 contains offences for the possession of controlled precursors. These offences are structured similarly to the ACT’s offences, as they contain the identical two fault elements that relate to intent. The commonwealth Criminal Code also contains two presumptions that apply to the offence at section 306.4 for possession of pre-trafficking controlled precursors. The presumption applies to this offence as it carries the lowest penalty of imprisonment—that is, for seven years, 1,400 penalty units, or both.
The first presumption applies in circumstances where a person possesses a substance and the possession was not authorised by the commonwealth, the state or territory. The presumption states that where a person possessed the substance in the above
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