Page 936 - Week 03 - Thursday, 28 February 2013

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video

The offence considered by the High Court and the Victorian Court of Appeal, and mentioned by Mr Rattenbury in his comments, is distinguishable from the offence to be modified by clause 23 of the bill. The offence in Momcilovic provided two presumptions which, taken together, established prima facie evidence of drug trafficking without the prosecution having to prove anything beyond the fact that a sufficient quantity of a substance was on the premises occupied by the defendant.

The offence as amended by clause 23 of this bill in contrast requires the prosecution to prove beyond reasonable doubt that the defendant intentionally possessed a controlled precursor and that the defendant did so with the intention of using it to manufacture a controlled drug. Only after the intentional possession and the intention to manufacture are established will a presumption arise that the defendant intended to sell the controlled drug.

I note that this proposed amendment has been the subject of comments by the Standing Committee on Justice and Community Safety exercising its legislative scrutiny role—twice. I have provided responses to questions raised by the committee on each of those occasions, and I will set out some of the context for the amendment now.

Clause 23 modifies the offence at section 612(5) of the Criminal Code to apply a statutory presumption in relation to the sale of a controlled drug. This offence at section 612(5) occurs where a person is in possession of a controlled precursor with an intention to manufacture a controlled drug and with an intention to sell the controlled drug. This offence carries a penalty of seven years imprisonment, 700 penalty units or both. It is a serious offence.

When the first two of these elements are proved, the presumption will apply and the defendant will be taken to have possessed the controlled precursor with the intention of selling any of the manufactured drug or believing that someone else intends to sell any of the manufactured drug unless the defendant proves otherwise on the balance of probabilities.

Let me stress again that the prosecution must first prove beyond reasonable doubt that the person intentionally possessed the controlled precursor and they must also prove beyond reasonable doubt that the person had an intention to manufacture a controlled drug before this presumption will apply. This is the same approach taken by the commonwealth in relation to the same offence. This reverse onus will require a defendant to raise evidence to displace the presumption. Normally, this evidence would relate to an intention to use the controlled drug for their own personal use. This is evidence that is peculiarly within the knowledge of the defendant. It is not unreasonable to expect that a defendant will be in a good position to prove their intention.

We are talking about those who, to face this presumption, have controlled precursors and a proven intention to manufacture. In case we are in any doubt, manufacturing illegal drugs is illegal. These are not persons innocently coming up against a

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . . Video