Giretti v The Director of Public Prosecutions

The applicant, Mario Giretti, sought special leave to appeal to the High Court of Australia against a decision of the Court of Criminal Appeal in Victoria. The Court of Criminal Appeal had dismissed Giretti's application for leave to appeal against his conviction in May 1986 on four counts of trafficking in heroin.

The legal issues before the High Court concerned the alleged misdirection by the trial judge regarding the burden of proof on count 4 of the presentment. This count related to a specific allegation of trafficking on 26 April 1985, following the discovery of a quantity of heroin exceeding the trafficable limit in Giretti's bedroom. The applicant contended that the trial judge had reversed the burden of proof, directing the jury that if Giretti failed to satisfy them on a balance of probabilities that he had no knowledge of the heroin, he would be guilty.

The applicant argued that section 73(2) of the Drugs Poisons and Controlled Substances Act 1981, which establishes a prima facie case of trafficking upon proof of possession of a trafficable quantity, had been misconstrued by the trial judge. The applicant submitted that the judge's direction effectively created a deemed trafficking offence by placing the onus on the accused to disprove knowledge, rather than requiring the Crown to prove trafficking beyond reasonable doubt. The applicant sought leave to add this ground of appeal.