Page 1333 - Week 05 - Tuesday, 9 April 2013
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subsections (5) and (5)(a) are proved by the prosecution. This means that the prosecution is required to prove that the defendant possessed the controlled precursor and possessed it with the intention of using it to manufacture a controlled drug.
Where these elements are proved, the presumption will apply and the defendant will be presumed, unless the contrary is proved on the balance of probability, 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 that manufactured drug. Where the prosecution has already proved these two elements, the presumption will satisfy the fault element at section 612(5)(b).
The government agrees that the proposed amendment does present a limitation on the presumption of innocence in the Human Rights Act. This is clearly stated in the explanatory statement for the bill. However, it is not the case that these rights cannot be limited; they can. The international jurisprudence has held that presumptions can operate in criminal offences, but they must be reasonable and they must maintain the right to a defence.
I draw members’ attention to the arguments outlined in the explanatory statement to the bill and refer in particular to the case of Salabiaku v France, which was a challenge under the European Convention on Human Rights. In that case, the applicant challenged a decision under the French Customs Code. The applicant was proved to have imported a consignment of prohibited drugs and under the code was presumed to know that the drugs were in his possession. As a result of the presumption, the applicant was found guilty of the offence of importing prohibited drugs. In the judgement the court held:
Presumptions of fact or law operate in every legal system. Clearly the Convention does not prohibit such presumptions in principle. It does, however, require the Contracting States—
that is, the states of the European Union—
to remain within certain limits in this respect as regards the criminal law … Article 6(2) does not therefore regard presumptions of fact or of law provided for in the criminal law with indifference. It requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence.
The court held in this case that the presumption did not violate article 6(2) of the European Convention on Human Rights. This was because the prosecution bore the onus to prove the physical element of the offence and it was a defence for the accused to prove that he was unaware of the contents of the consignment.
Equally, in the case of Momcilovic v The Queen, the High Court of Australia considered an appeal by the applicant against her conviction against section 71AC of the Victorian Drugs, Poisons and Controlled Substances Act 1981 for trafficking in a drug of dependence. One of the key issues of the appeal was the application of section 5 of the Victorian drugs act to the offence at section 71AC. Section 5 created a presumption that provides that a substance on premises occupied by a person is
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