Legal Research
Cases
Damaso v The Queen

Damaso v The Queen

Case [2002] NTCCA 2 1 May 2002

Appeal

Charge

Intention

Statutory Construction

Criminal Law

Statutory Interpretation

Evidence

Type to search within this case.

Damaso v The Queen [2002] NTCCA 2
PARTIES:BRETT WILLIAM DAMASO

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 11 of 2001
DELIVERED:  1 May 2002
HEARING DATE:  13 March 2002
JUDGMENT OF:  MILDREN, BAILEY & RILEY JJ
CATCHWORDS:

APPEAL – effect of amendments to s 37 of the Misuse of Drugs Act – s 37(6)(b) raises a presumption that an accused in possession of a commercial quantity of cannabis intended to supply the cannabis for commercial gain – effect of the provision is to presume the existence of a circumstance of aggravation unless the contrary is proved on a balance of probabilities – reversal of the onus of proof – interference with right of a defendant to have a circumstance of aggravation proved against him beyond reasonable doubt – presumption against retrospectivity applicable – presumption has no application to facts occurring before date of commencement of amendment, 14 December 2000.
Misuse of Drugs Act (NT): s 37(1), (6) and (7)
Criminal Code (NT)
Trade Practices Act (Cth)
Maxwell v Murphy (1956-1957) 96 CLR 261 at 267, applied.
Rodway v The Queen (1989-1990) 169 CLR 515, applied.
Fabian (1993) 64 A Crim R 365, followed.
Anderson v The Queen (1993) 177 CLR 520, followed.
R v Olbrich (1999) 199 CLR 270, followed.
MCP Muswellbrook Pty Ltd v Deutsche Bank (Asia) AG (1988)
12 NSWLR 16, considered.
Richardson v Shipp [1970] Tas SR 105, applied.
R v Simpson [2001] NSWCCA 534, unreported, delivered
19 December 2001, applied.
Dinsdale v The Queen (2000) 202 CLR 32, applied.
Astill (No 2) (1992) 64 A Crim R 303, applied.
REPRESENTATION:
Counsel:
Appellant:J Tippett QC
Respondent:  M Carey
Solicitors:
Appellant:NAALAS
Respondent:  DPP
Judgment category classification:    B
Judgment ID Number:
Number of pages:  24

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Damaso v The Queen [2002] NTCCA 2
No. CA 11 of 2001

BETWEEN:
BRETT WILLIAM DAMASO

Appellant
AND:
THE QUEEN

Respondent

REASONS FOR JUDGMENT
(Delivered 1 May 2002)
CORAM: THE COURT
Background

On 23 May 2001, the appellant pleaded guilty and was convicted of two offences under the Misuse of Drugs Act (“MOD Act”). The first offence was one of unlawful possession of cannabis. The offence was aggravated by reason that the appellant was in possession of a commercial quantity of cannabis, namely, 940.5 gms. The maximum penalty for this offence, contrary to s 9(1) and (2)(d) of the MOD Act is imprisonment for 14 years. The second offence was one of unlawfully supplying cannabis. The maximum penalty for this offence, contrary to s 5(1) and (2)(a)(iv) of the MOD Act is a fine of $10,000 or imprisonment for 5 years.
The two offences were committed between 11 December and 22 December 1999. The cannabis which was the subject matter of the first offence was located in eleven bags of various weights at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Damaso v The Queen

Details

AGLC: Damaso v The Queen [2002] NTCCA 2
Case: [2002] NTCCA 2
Decision Date: 1 May 2002

CaseChat Overview and Summary

The appeal in *Damaso v The Queen* concerned the application of amendments to section 37 of the *Misuse of Drugs Act*. The central dispute revolved around the presumption created by section 37(6)(b) of the Act, which, in cases involving possession of a commercial quantity of cannabis, presumes an intention to supply for commercial gain. This presumption effectively reverses the onus of proof, requiring the accused to demonstrate the contrary on a balance of probabilities, thereby interfering with the right to have circumstances of aggravation proven beyond reasonable doubt.

The legal issues before the court were whether the presumption introduced by section 37(6)(b) applied retrospectively to conduct that occurred before the amendment's commencement date of 14 December 2000. The court was required to determine if the presumption could be relied upon by the prosecution when the alleged offence predated the legislative change.

The court applied the well-established legal principle that statutory provisions are presumed not to operate retrospectively unless Parliament clearly indicates an intention for them to do so. Applying this presumption, the court reasoned that the amendment to section 37, including the reversal of the onus of proof regarding commercial gain, had no application to facts or circumstances that occurred before the commencement date of 14 December 2000. Therefore, the presumption could not be invoked against the appellant for conduct alleged to have taken place prior to that date.

Orders