Attorney-General v Arkinstall

The Attorney-General appealed against a decision of the trial judge in the Supreme Court of Tasmania. The appeal concerned the trial judge's refusal to direct the jury on the operation of a reverse onus provision under the *Misuse of Drugs Act 1984* (Tas) in relation to a charge of trafficking in a controlled substance. The accused had been found in possession of a quantity of methylamphetamine, and evidence suggesting the quantity was trafficable had emerged during the course of the trial, including from the accused's own evidence.

The central legal issue before the Full Court of the Supreme Court of Tasmania was whether the trial judge had erred in exercising their discretion not to direct the jury on the reverse onus provision. This provision, found in section 40(1) of the *Misuse of Drugs Act 1984* (Tas), deems a person in possession of a trafficable quantity of a controlled drug to be in possession for the purpose of trafficking, unless the contrary is proved. The question was whether, in the specific circumstances of the trial, directing the jury on this provision would have been unfair to the accused.

The Full Court reasoned that the trial judge's discretion to refrain from directing the jury on the reverse onus provision should only be exercised in exceptional circumstances where such a direction would be demonstrably unfair. In this instance, the evidence of the quantity being trafficable had become apparent during the trial, and the accused had not been taken by surprise. The Court held that the trial judge had misapplied the principles governing the exercise of this discretion, and that a direction on the reverse onus provision was appropriate.

The Court granted leave to appeal and allowed the appeal, setting aside the acquittal and ordering a new trial.