Damaso v The Queen

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.