PARTIES: ATTORNEY-GENERAL'S REFERENCE NO 1 OF 2004

JUDGMENT OF: Underwood CJ, Crawford and Evans JJ

Statutes - Acts of Parliament - Operation and effect of statutes - Retrospective operation - In respect of procedure and practice - When not retrospective.

Misuse of Drugs Act 2001 (Tas), s7(2).

Rodway v R [1990] HCA 19; (1990) 169 CLR 515, applied.

Newell v R [1936] HCA 50; (1936) 55 CLR 707, distinguished.

Richardson v Shipp [1970] Tas SR 105; Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1; Ah Hing v Hough [1926] WAR 95, not followed.

Attorney-General: Director of Public Prosecutions

Judgment Number: [2005] TASSC 10

The learned trial judge was wrong in law in holding that the Misuse of Drugs Act 2001, s7(2) as enacted after the amendment made by Act No 9/2004, did not apply to the trial for a crime alleged to have occurred prior to the commencement of Act No 9/2004.

1 On 4 August 2004, Stephen Charles Crane was acquitted of cultivating cannabis for sale, contrary to the Misuse of Drugs Act 2001 ("the Act"), s7(1)(a), but convicted of the alternative charges of cultivating a controlled plant and using a controlled plant, contrary to the Act, ss22 and 25.

2 The relevant events occurred on 20 December 2002 when the police visited Mr Crane's property and there found 24 Indian hemp plants growing. At that time, and currently, the Act, s7(1)(a), created the offence charged by providing:

"A person must not cultivate a controlled plant -

(a) with the intention of selling the controlled plant or any of its products."

3 At the time of the alleged commission of the offence the Act, s7(2), provided:

"If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, in the absence of evidence to the contrary, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence."

4 The Act, s3(1), and Sch1, Pt3, relevantly provides (now and on 20 December 2002) that 20 individual plants of cannabis is a trafficable quantity. Section 7(2) was amended by Act No 9/2004 to read:

"(2) If it is proved in proceedings for an offence under subsection (1) that the accused cultivated a trafficable quantity of a controlled plant, it is presumed, unless the accused on the balance of probabilities proves otherwise, that the accused had the relevant intention or belief concerning the sale of the controlled plant or its products required to constitute the offence."

5 That amendment came into operation on 27 May 2004, after the alleged commission of the offence charged and just over two months before Mr Crane's trial commenced. During the course of the trial, the learned trial judge ruled that the amendment did not apply to Mr Crane's trial and he directed the jury in accordance with the Act before Act No 9/2004 came into force. Pursuant to the Criminal Code, s388AA, the Attorney-General has referred the following question of law to this Court for determination:

"Whether the learned trial judge was wrong in law in holding that section 7(2) of the Misuse of Drugs Act 2001 did not apply to the trial."

6 It is common ground that the learned trial judge ruled that the Act, s7(2), did apply to Mr Crane's trial, but as enacted prior to the amendment made by Act No 9/2004 and the Reference should be read accordingly.

7 The common law principle with respect to amendments made to statutes was stated by Dixon CJ in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, in the following terms:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62. 'No suitor has any vested interest in the course of procedure, nor any right to complain, if during the litigation the procedure is changed, provided, of course, that no injustice is done' (1876) 3 Ch D, at p 69."

8 Mr Richardson, who appeared in opposition to Mr Ellis SC, submitted that the amendment operated so as to reverse the onus of proof and consequently it affected his client's rights. In this respect, he relied upon the following passage taken from the judgment of Burbury CJ in Richardson v Shipp [1970] Tas SR 105 at 108:

"There can be no doubt that the effect of the new subsection is to place the legal burden of proof upon a defendant to prove that the reading given by a breathalyser is not accurate. ... The effect of the new enactment is therefore to deprive a defendant charged with this offence of a basic safeguard adopted by our law that a person charged with a crime or summary offence does not have to prove his innocence but that the prosecution must prove his guilt to the satisfaction of the court or a jury to the point where upon the evidence it cannot be said that there is any reasonable doubt about it. Uninstructed by authority on the precise point I would hold an enactment of this kind does not have retrospective effect, because although it may be said to be procedural in character, it adversely affects a vested right, and that is the presumption of innocence."

9 Richardson was concerned with an amendment to the Traffic Act 1925 about the evidentiary value of a reading from a breath analysing instrument. At the time of the alleged offence, the statute provided that such a reading was evidence of the concentration of alcohol in the blood. At the time of the hearing, an amendment provided that such a reading "shall be deemed to have given an accurate percentage ... unless the contrary was proved". It can be seen that Richardson is somewhat different from the present case. In the present case before and after the amendment, the Act, s7(2), enacted a factual presumption with respect to the state of mind of the accused. Prior to the amendment that presumption was displaced by evidence contrary to the presumed fact, thus leaving the State with the onus of proving beyond reasonable doubt all the elements of the crime charged, unaided by any presumption. After the amendment, the presumption was only displaced by the accused discharging an onus of proof with respect to the presumed fact. In Richardson, prior to the amendment, the defendant did not carry any burden of proof, either evidentiary or substantive.

10 Mr Richardson also relied upon Ah Hing v Hough [1926] WAR 95. Ah Hing was charged that he:

* was found within the Commonwealth on 18 February 1926;

* was then required to pass a dictation test prescribed by the Immigration Act 1901 - 1925 (C'th) and failed to do so; and

11 According to the judgments of Burnside and Draper JJ, the evidence established that the defendant was in Western Australia in 1918. A question thus arose as to the applicability of certain statutory provisions enacted after that date. Those provisions cast an onus of proof upon a defendant with respect to certain elements of the offence charged. Their Honours held that the amendments were not procedural and that as they cut across the time-honoured concept that the Crown carries the onus of proof, they were not retrospective in operation and did not apply to the defendant. Burnside J said at 98 - 99:

"The effect of the Statute of 1925 was to alter one of the fundamental principles of the law of evidence. It alters the most sacred principle of the criminal law, by making a person charged with an offence prove his innocence, which otherwise he was not bound to do. That appears to me to be a sufficiently clear indication that it is not merely a question of procedure, but a question of taking away a right from him, a right which he had, to have his innocence presumed, and of casting upon him the onus of proving that he was not guilty."

12 Ah Hing was relied upon by the Full Court of the Supreme Court of South Australia in Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1. The Reference concerned an amendment which (inter alia) removed a prohibition against conviction upon the uncorroborated unsworn evidence of a child. The amendment came into operation between the date of the alleged commission of the crimes and the date of trial. King CJ (with whose reasons for judgment Millhouse J agreed) referred to Ah Hing v Hough (supra) and said at 6:

"There is a sense in which laws relating to the competence of witnesses and the quantum of evidence required to prove guilt can be said to deal with matters of procedure. Where such laws, however, provide substantial protections against wrongful conviction, they are treated by the law as conferring substantive rights upon citizens and as going beyond the realm of mere procedure. Prior to the commencement of this amending Act there existed an immunity from conviction, assuming the charge to be denied on oath, on the uncorroborated evidence of a child under ten years or upon the unsworn evidence of a child then not authorised to give such evidence. In a sense that was a right enjoyed by the defendant in common with all citizens not to be placed in jeopardy of conviction on such evidence. The defendant, in common with other citizens, has been deprived of that right by the amending Act."

13 Rodway v R [1990] HCA 19; (1990) 169 CLR 515 was an appeal from this Court. That case concerned a statutory amendment that came into operation between the date of the alleged commission of the crimes charged and the trial. It repealed a provision that in the case of certain crimes, an accused could not be convicted upon the uncorroborated evidence of the complainant. The amendment also abolished any requirement that a judge should warn a jury against convicting upon the uncorroborated evidence of the complainant unless in the circumstances of a particular case, such a warning was warranted.

14 The judgment of the court cited with approval the passage that I have cited from Maxwell v Murphy. At 520, the joint judgment referred to Newell v R [1936] HCA 50; (1936) 55 CLR 707, which was another appeal from this Court. In that case, the accused was called upon to plead as provided by the Code, s351(1). He entered a plea of not guilty and the trial was adjourned to a later date. Notwithstanding the adjournment, the trial had commenced because the Code, s351(6), provides that "the trial shall be deemed to begin when the accused is called upon to plead". The High Court held that an amendment to the law to provide for majority jury verdicts that came into operation between the date the plea was taken and date the trial resumed, did not have retrospective effect and did not apply to the trial of the appellant. The joint judgment in Rodway, at 521, referred to "those narrow circumstances" and said:

"But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial."

15 The joint judgment then turned its attention to Attorney-General's Reference No 1 of 1988 (which relied upon Ah Hing) and cited the passage from the judgment of King CJ that I have set out above. The joint judgment concluded, at 523, that Attorney-General's Reference No 1 of 1988 had been wrongly decided, saying at 522:

"Some procedures at a trial provide fundamental protection against wrongful conviction, but, in conformity with the passage already quoted from the judgment of Dixon CJ in Maxwell v Murphy, this ordinarily provides no basis for regarding them as having a retrospective operation simply because the trial concerns events and transactions past and closed. The fact that such procedures are important does not alter the way in which they operate and, if they operate so as to affect no existing rights or obligations but merely the way in which those rights or obligations are to be contested in court, then they do not fall within the presumption against retrospectivity. Fundamental rights, irrespective of whether they should be classified as procedural or substantive, will almost invariably be reflected in the common law and the protection against statutory interference with them, whether prospective or retrospective, lies in another presumption. That is the presumption that the legislature does not intend to affect basic common law doctrines unless it expresses its intention in the clearest of terms: Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, at p 304; Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52, at pp 96-97, 104, 116, 123; Sorby v The Commonwealth (1983)152 CLR 281, at pp 289-290; Hamilton v Oades (1989)166 CLR 486 at p 495."

16 Of particular relevance to the present issue in the two passages I have just cited are the following two propositions:

* firstly, that there is no right to be tried in a particular way (at least not before the trial begins); and;

* secondly, that the determinative factor is whether the amendment affects only the manner in which existing rights and obligations are to be determined. If it does no more than affect the way existing rights and obligations are to be tried, there is no presumption against retrospectivity.

17 These propositions are valid even if the amendment affects what might be generally regarded as a fundamental protection against wrongful conviction. Accordingly, it seems to me that Attorney-General's Reference No 1 of 1988, Ah Hing v Hough and, insofar as it decided to the contrary to those propositions, Richardson v Ship can no longer be regarded as good law. Further, Newell v R (supra) should be confined to the unusually narrow circumstances of that case, namely, where a procedural amendment came into operation after the formal commencement of the trial.

18 At the time of the alleged commission of the offence, Mr Crane "had acquired no right to a particular mode of procedure at his trial", per Rodway at 523. The Act, s7(2), before and after amendment, concerned only the nature and extent of the evidence required to establish the offence charged. The amendment did no more than change the manner in which the statutory factual presumption could be displaced. It did not touch Mr Crane's rights, obligations or liabilities that he had acquired, or was subject to, at the date the State alleged he committed the offence charged. Although it might be said that the amendment touched an important protection, or made a fundamental change, it clearly did no more than affect the way the accused's rights and obligations were to be contested in court, and therefore did not fall within the presumption against retrospectivity.

19 I would answer the Reference by saying the learned trial judge was wrong in law in holding that the Misuse of Drugs Act, s7(2), as amended by Act No 9/2004, did not apply to the trial of the State of Tasmania v Stephen Charles Crane.

20 I agree with the reasons for judgment of the Chief Justice.

21 I agree with the reasons for judgment prepared by Underwood CJ and the answer he proposes.