R v Fisher No. DCCRM-02-1322

[2003] SADC 163

Settled-Judge D. Clayton-12 November 2003

JUDGE CLAYTON
NO.1322/2002
WEDNESDAY, 5 NOVEMBER 2003 AT 10.52 A.M.
R  v  MIKKI ARIANNA FISHER
RELATING TO P.97 OF TRANSCRIPT

1. HIS HONOUR: The accused Mikki Arianna Fisher contends that s32(3) of the Controlled Substances Act is unconstitutional and invalid. It is submitted that the Crown cannot rely on the presumption that arises if a person is in possession of more than the prescribed amount of the drug. The application relies upon the decision of the High Court of Australia in Kable v the DPP for New South Wales (1996) 189 CLR 51 and Dietrich v The Queen (1992) 177 CLR 292.

2. As I said, my summary is not intended to do justice to the sophisticated argument put by Mr Schapel, which is to the effect that the presumption in s32(3) reverses the onus of proof and therefore denies an accused a fair trial in the sense described in Dietrich. As a consequence the requirements of chapter III of the Commonwealth Constitution, in the way described in Kable, are offended, with the consequence that s32(3) is unconstitutional and invalid.

3. The applicant also relies upon the decision of the High Court of Hong Kong in the R v Sin Yau-ming (1992) Hong Kong CLR 127 where a provision in the Dangerous Drugs Act of the Colony was held to be inconsistent with the guarantees set out in the Hong Kong Bill of Rights.

4. The Hong Kong decision and the other overseas decisions which have been cited are not binding on this Court. For the purpose of unconstitutionality there is a difference between the guarantees in the Hong Kong Bill of Rights, the Canadian Charter of Rights and Freedom which is referred to in R v Oakes and the Human Rights Act which is referred to in The Queen v Lambert, on the one hand, and the common law rights which are referred to in this case, on the other hand.

5. I have not been persuaded that there is any reason to hold s32(3) is unconstitutional or invalid for any reason. In particular, I am not satisfied there is any reason to set aside a statute of the South Australian Parliament as invalid. S.71 of the Commonwealth Constitution does not provide any basis to hold s32(3) of the Controlled Substances Act to be invalid. Provisions of the same nature as s32(3) have withstood challenge in cases such as, Milicevic v Campbell (1975) 132 CLR 307 where the High Court of Australia upheld the validity of s233B of the Customs Act 1901-1977 which contains a reversal of the onus of proof. Also in that case, Gibbs J as he then was followed Williamson v Ah On (1926) 39 CLR 95 at p.108 and following which was to the same effect.

6. I have had regard to what the High Court said about reversal of the onus of proof in Nicholas v the Queen (1998) 193 CLR 173; in particular what Brennan CJ said at p.188 para.23 and following to p.198 para.27.

7. In particular the decision in Kable can be distinguished. In that case the court held that the act in question required the New South Wales Supreme Court to act in a way that was contrary to judicial power. I refer to remarks of Hayne J as to Kable in the decision of R v Moffat (1998) 2 VR 229. In my opinion s32(3) does not require the court to act in a way that is contrary to judicial power. I therefore accept the submission of the Crown that s32(3) does not compromise the judicial power. I hold that s32(3) is a valid enactment and therefore has application in this case.

   RULING COMPLETED 10.57 A.M.