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Legislative Assembly for the ACT: 2001 Week 9 Hansard (22 August) . . Page.. 3125 ..

MR RUGENDYKE (continuing):

establishes the contrary on the balance of probabilities. This means that the defendant bears both the evidentiary and probative burden of proof.

The provisions of section 159 have been interpreted to mean that at least a sample of the relevant substance must be taken. This was deemed necessary by the courts to enable a defendant to be provided with a sample that he or she could have analysed to rebut the prosecution evidence.

The Victorian Liquor Control Act 1987 provides that where an informant avers that any liquid is liquor the averment is evidence that the liquid is liquor. The aim of this bill is to adopt this type of provision to relieve police of the need to have liquid thought to be liquor analysed to ascertain whether it is liquor.

Unlike a rebuttable presumption, an averment does not shift the onus of disproving the relevant facts, which are whether the liquid was or was not liquor, to the defendant. The prosecution has the onus of establishing the elements of the defence beyond reasonable doubt.

The averment provision provides that the allegations of the prosecutor in the averment are sufficient to discharge the onus of establishing a relevant fact. An averment is an allegation which is ascribed the status of prima facie evidence.

I am aware that the Australian Federal Police and the Australian Federal Police Association have expressed a desire for this provision of the legislation to be changed in this manner. As the legislation regarding liquor offences stands, police are required to take samples of what is purported to be liquor, have it analysed and prove that it contains alcohol.

This bill will change the legislation so that police are able to aver or confirm that when a liquid purports to be alcohol it is taken as alcohol. It is that simple. It streamlines a procedure that will make the Liquor Act work much more smoothly and appropriately.

Debate (on motion by Mr Stefaniak ) adjourned to the next sitting.

Evidence (Miscellaneous Provisions) Amendment Bill 2001

Mr Rugendyke, pursuant to notice, presented the bill and its explanatory memorandum.

Title read by Clerk.

MR RUGENDYKE (11.00): I move:

That this bill be agreed to in principle.

The thrust of this bill is that counsellors' notes in relation to sexual offences will be considered to be in confidence. The defence in a sexual assault case would be unable to adduce evidence from confidential notes of a counsellor.

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