Page 933 - Week 03 - Thursday, 28 February 2013

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they did not intend to sell it, because there is simply no evidence one way or the other. The effect of the provision will be to make the person guilty of intending to sell drugs when there is a likelihood that that is simply not the case. In the Human Rights Act we have codified the commonwealth protection of this principle in section 22(1), which is taken from article 14 of the International Covenant on Civil and Political Rights.

The sole justification advanced and the single aim of the clause is to make it easier to convict people of the offence. That is it. Certainly we want to make laws that can be enforced, and it follows logically that if you create a presumption that an element of the offence is presumed to have been committed, and make the defendant prove their innocence, that will make it easier to convict somebody. However, it should be noted that in the Momcilovic case, which I will return to later, three judges of the Victorian Court of Appeal unanimously found, when considering the issue of the justification at paragraphs 145 and 146 of their judgement:

The second obstacle lay in the submissions made by senior counsel for the Crown, who holds the position of Chief Crown Prosecutor. Far from submitting that the imposition of a reverse legal onus was essential to the task of successfully prosecuting trafficking offences, senior counsel candidly acknowledged that a change from a persuasive onus to an evidentiary onus would make little difference. Pressed by the court, counsel eschewed any suggestion that a change of the onus from persuasive to evidentiary would make a major or demonstrable difference to drug trafficking prosecutions. As to the need for evidence, he submitted that empirical evidence of the efficacy of the persuasive onus would have been virtually impossible to obtain. It was mere speculation, he said, whether the outcome in a particular trial would have been different had the prosecution not been able to rely on a reverse legal onus.

… In our view, this was a case where evidence was required. The mere assertion that the reverse onus was essential to the effective prosecution of trafficking offences could never have been sufficient by itself to establish that fact.

Reflecting on those remarks, the question for us here in the Assembly is: is that justifiable? Is that a legitimate end for which we are prepared to derogate from the most central right in the criminal legal system? Surely the appropriate question to ask, if it is difficult to show that people intend to sell the substance they produce when they only have a small quantity, is: why is it an element of the offence in the first place? A more logical step would be to create distinct offences with proportionate penalties rather than using the subversive way of deeming them to have done something there may well be no evidence for.

In Paul Rodney Hansen and the Queen, the Chief Justice of the Supreme Court of New Zealand found the following, also in the context of a deemed drug offence:

The practicalities of proof, the risk of conviction of the innocent, and the penalties applicable on conviction are likely to be key when assessing whether a reverse onus of proof is justified. Such onus may perhaps be justified where an accused is well-placed to prove a licence or formal qualification … especially if significant criminality is not in issue. It may also be more readily justified where the accused has assumed a particular risk … If an unrebutted presumption

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