Criminal Law - Particular offences - Drug offences - Procedure - Proof and evidence - Trafficable quantity - Smaller quantities imported, possessed or transported on different days.

Misuse of Drugs Act 2001 (Tas), s12(2).

R v Hamzy (1994) 74 A Crim R 341, distinguished.

Accused T Spence: E R Henry Wherrett & Benjamin

Judgment Number: [2008] TASSC 32

STATE OF TASMANIA v TONI SPENCE and DAVID LLOYD SPENCE

1 These are my reasons for ruling yesterday that the reverse onus provisions in the Misuse of Drugs Act 2001 ("the Act"), s12(2), were not applicable in this case.

2 The accused have been charged with trafficking in a controlled substance, namely methylamphetamine. Under s12(2), if it is proved that a person charged with such a crime has prepared for supply, transported, guarded, possessed or imported into Tasmania a trafficable quantity of a controlled substance, the accused then bears the burden of proving on the balance of probabilities that he or she did not have the intention or belief concerning the sale of the substance that would make him or her guilty of trafficking. A trafficable quantity of methylamphetamine is a quantity of not less than 25 grams: the Act, s3A(1)(a), and Sch1, Pt2, item 172. There is evidence enabling the jury to make a finding that the accused Toni Spence imported methylamphetamine into Tasmania over a period of weeks in a series of postal articles, and that the total quantity of the drug so imported exceeded 25 grams. However there is no evidence that she ever had as much as 25 grams in her possession at any one time, or in any one postal article. The evidence suggests that the articles were posted on different days and arrived in Tasmania on different days. The Crown contends that, for the purposes of s12(2), the quantity of the drug imported by the accused into Tasmania is to be reckoned by adding up the amounts transported, possessed or imported on different days as part of a single course of activity. The accused contend that, for the purposes of s12(2), only the quantity transported, possessed or imported on a single occasion may be taken into account. That is to say, the accused contend that the reverse onus provisions in s12(2) cannot apply in this case.

3 Section 12 reads as follows:

"(1) A person must not traffic in a controlled substance.

Penalty:

(2) If it is proved in proceedings for an offence under subsection (1) that the accused -

(a) prepared a trafficable quantity of a controlled substance for supply; or

(b) transported a trafficable quantity of a controlled substance; or

(c) guarded or concealed a trafficable quantity of a controlled substance; or

(d) possessed a trafficable quantity of a controlled substance; or

(e) imported a trafficable quantity of a controlled substance into Tasmania -

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 substance required to constitute the offence."

4 Paragraph (a) of the definition of "trafficable quantity" in s3A(1) is applicable. That provision reads as follows:

"(1) In this Act -

'trafficable quantity', of a controlled substance, means -

(a) in the case of a controlled drug that is not mixed with or contained in any other substance, a quantity of the controlled drug that is not less than the quantity specified in column 3 of the table in Part 2 of Schedule 1 in relation to the controlled drug ...".

5 Whilst similar reverse onus provisions are common in Australian jurisdictions, there do not appear to be any reported cases directly in point. Counsel for the Crown referred me to the decision of the New South Wales Court of Criminal Appeal in R v Hamzy (1994) 74 A Crim R 341. However that case concerned provisions in the Drug Misuse and Trafficking Act 1985 (NSW) whereby the maximum sentences for supplying a prohibited drug depend on whether the quantity supplied was a "large commercial quantity", a "commercial quantity", or some lesser quantity. Since the crime created by that Act of supplying a prohibited drug is one that may be committed by a series of transactions over a lengthy period, it seems clear that it was the intention of the New South Wales Parliament that the quantities involved in a series of transactions were to be added together for the purpose of sentencing. That case is really of no assistance.

6 In a case where the evidence establishes only possession of a quantity of a controlled substance, as distinct from preparation for supply, transportation, guarding, concealment or importation into Tasmania, only s12(2)(d) can apply. Possession is not an activity, but a state of affairs at a particular time: R v Grant [1975] 2 NZLR 165 at 169; Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 575; Lee v Tasmania [2006] TASSC 92; (2006) 16 Tas R 67 at 76. That suggests that only the quantity of a substance in an accused person's possession at one particular time may be taken into account for the purpose of s12(2)(d).

7 However s12(2) applies not just in relation to possession, but also in relation to a range of activities including transportation and importing. Under s12(2), a rebuttable presumption as to the intention or belief of the accused arises when the accused has engaged in one of the specified activities in relation to a trafficable quantity of a drug. The critical question is whether Parliament intended that presumption to arise when one of the specified activities had been carried out over a period of time in relation to a series of small quantities of a substance which, only if added together, would have amounted to a "trafficable quantity" of that substance. For example, in relation to importation, was it intended that the presumption would arise if it is proved that, over the period alleged in the charge, the accused imported a trafficable quantity of a substance, or only if it is proved that on one occasion the accused imported a trafficable quantity?

8 In his second reading speech in relation to the Act in the House of Assembly on 23 October 2001, the then Minister for Justice and Industrial Relations, Dr Patmore, said the following:

"The bill also contains a schedule of trafficable quantities of particular controlled drugs, plants or precursors. Where a person is found in possession of not less than the trafficable quantity of the particular drug, plant or precursor, then that person will be presumed to be in possession of that drug for the purposes of sale in the definition of trafficking. This is an important part of the legislation as in many instances it may be difficult for the Crown to prove that a person in possession of a particular quantity of the drug had it for the purposes of trafficking. ...

The quantities have been set at a level advised by the Tasmanian Drug Squad to reflect modern illicit drug use patterns. They have advised that the current levels in the Poisons Act are so low that they catch drug users whose supplies are for personal use and who are not involved in trafficking at all. Consequently the trafficable quantity levels have been significantly increased from that which exist in the current Poisons Act."

9 In its original form, s12(2) did not reverse the onus of proof. It simply created a presumption as to the intention or belief of the accused that would apply in the absence of evidence to the contrary. The subsection was amended so as to reverse the burden of proof by the Misuse of Drugs Amendment Act 2004. The second reading speech relating to that Act in the House of Assembly on 29 April 2004 contained nothing to suggest that Parliament intended s12(2) to be interpreted as the Crown now contends that it should be.

10 The Act did not contain a prohibition on the importation of illicit drugs into Tasmania until it was amended by the Misuse of Drugs Amendment Act 2005. That Act inserted a new section, s27A, which makes it a summary offence for a person to import a controlled substance into Tasmania when not authorised to do so by or under another law of the State. That amending Act also inserted s12(2)(e), which provides for the rebuttable presumption now under discussion to arise when it is proved that the accused "imported a trafficable quantity of a controlled substance into Tasmania". That Act also expanded the definition of "trafficable quantity" so as to cover the situation where an individual is found in possession of smaller quantities of a number of drugs. In her second reading speech in the House of Assembly on 23 November 2005, the then Minister, Mrs Jackson, said the following:

"Trafficking charges under the act are generally based on the possession of a quantity of drugs above a certain stated trafficable quantity. Currently, stated trafficable quantities only apply to a quantity of a single substance. However, drug dealers are opportunists and will buy any controlled substance they can have access to, to sell to their clientele. As a consequence they are often found with a combination of drugs for sale. This is also done deliberately so they possess no single substance in a quantity at or above the trafficable quantity.

The bill amends the act to provide for trafficking charges to be available if a person is in possession of more than an aggregated trafficable quantity. This will prevent drug dealers from escaping trafficking charges by offering a range of substances in quantities just below the trafficable quantities for each individual substance. To find the aggregated trafficable quantity, the amount of each illicit substance is calculated as a percentage of the trafficable quantity for that substance. If the percentages added together come to more than 100 per cent then the aggregated trafficable quantity is reached."

11 That passage, like the passage I have quoted from the second reading speech in 2001, suggests that the intention of Parliament was that a trafficable quantity was to be measured by reference to the state of affairs at a particular time, rather than by aggregating the quantities of a drug or drugs which had been the subject of activity on the part of the accused over a period of time.

12 The Acts Interpretation Act 1931, s8A, requires an interpretation that promotes the purpose or object of an Act to be preferred to one that does not. I think it is clear from the second reading speeches that the purpose or object of s12(2) is to create a rebuttable presumption when it is proven that, at a particular time, an accused person has had possession, or has carried out some activity in relation to, a quantity of a drug that was so large as to suggest that selling was intended. It is clear from the 2001 second reading speech that the trafficable quantities specified in the Act were established by reference to the quantities that an individual might have in his or her possession, for personal use only, at a particular time. If every gram of a drug that a user imported, transported or concealed for his or her personal use over a period of time were able to be counted for the purposes of s12(2), drug users who were not involved in trafficking at all would be caught by that subsection. It is clear from the 2001 second reading speech that that would be the opposite of what Parliament intended.

13 I think it must follow that the verbs "prepared", "transported", "guarded", "concealed", "possessed", and "imported" in s12(2) must be interpreted as referring to single occasions or single transactions, as distinct from the whole of the course of an activity over a period of time.

14 Section 12(2) abrogates the common law principle that an accused person may not be convicted unless every element of the crime is proved by the Crown beyond reasonable doubt. An interpretation of s12(2) whereby drugs are measured only by reference to single occasions or transactions is consistent with the principle whereby statutes abrogating the common law should be given a narrow interpretation. It is also consistent with the principle that a penal statute should be construed in favour of the subject and against the Crown.

15 For these reasons, I concluded that s12(2) can have no operation on the facts of this case, and that the jury should be directed accordingly.