R v Hansen
[2007] NZSC 7
•20 February 2007
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IN THE SUPREME COURT OF NEW ZEALAND
SC 58/2005
[2007] NZSC 7PAUL RODNEY HANSEN
v
THE QUEEN
Hearing:22 February 2006
Court:Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ
Counsel:S Vidal and J Taylor for Appellant
T Arnold QC, J C Pike and J M Davidson for the Crown
Judgment:20 February 2007
JUDGMENT OF THE COURT
THE APPEAL IS DISMISSED.
REASONS
Para No
Elias CJ [1]
Blanchard J [46]
Tipping J [85]
McGrath J [168]
Anderson J [262]
ELIAS CJ
[1] Under s 6(6) of the Misuse of Drugs Act 1975 those who are in possession of controlled drugs above specified quantities are deemed “until the contrary is proved” to possess the drugs for the purpose of supply or sale. Possession of cannabis is an offence which carries a maximum term of imprisonment of three months. Possession of cannabis for the purpose of supply or sale carries a maximum term of imprisonment of eight years. The appellant was proved at trial to have been in possession of more than the 28 grams of cannabis plant at which the statutory presumption of purpose of supply or sale is triggered. The Judge directed the jury that s 6(6) required him to disprove on the balance of probabilities a purpose of supply or sale.[1] The appellant contends this direction was wrong, although it conforms to the decision of the Court of Appeal in R v Phillips.[2] Following his conviction, the appellant appealed unsuccessfully to the Court of Appeal, which declined to depart from R v Phillips. He was granted leave to appeal further to this Court on the question whether s 6(6) does place a legal onus of proof on the accused, as R v Phillips held.
[1]In written directions given to the jury, the Judge instructed them that once the Crown had proved beyond reasonable doubt that the accused was in possession of cannabis weighing more than 28 grams, “the accused is presumed or deemed to have the drugs for the purpose of supplying them to others”:
[2][1991] 3 NZLR 175.
[2] The appellant maintains that requiring an accused to persuade the jury that he did not have the purpose of sale or supply is inconsistent with his right under s 25(c) of the New Zealand Bill of Rights Act 1990 to be presumed innocent until proved guilty. He argues that s 6 of the New Zealand Bill of Rights Act required s 6(6) of the Misuse of Drugs Act to be given a meaning consistent with the presumption of innocence in s 25(c). Section 6 of the New Zealand Bill of Rights Act provides:
6Interpretation consistent with Bill of Rights to be preferred –
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
[3] The appellant contends that consistency with the right to be presumed innocent would be achieved if s 6(6) of the Misuse of Drugs Act is construed to impose an evidential burden only. Such burden would be discharged if the evidence raised a doubt as to the purpose of supply or sale, leaving the legal onus on the Crown to satisfy the jury beyond reasonable doubt that the appellant had such purpose. On this basis, “until the contrary is proved” would mean “unless there is evidence to the contrary which, if accepted, would raise a reasonable doubt as to the purpose of supply or sale”.
[4] The Solicitor-General says the clear meaning of s 6(6) is to impose upon the accused a legal onus to prove on the balance of probabilities that he did not possess the cannabis for the purpose of supply or sale, as R v Phillips held. He acknowledges that such onus to prove the non-aggravating purpose is contrary to the presumption of innocence under s 25(c) of the New Zealand Bill of Rights Act, but argues that s 6(6) of the Misuse of Drugs Act is a justified limit within the meaning of s 5 of the New Zealand Bill of Rights Act. It provides:
5 Justified limitations –
Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Section 4, to which s 5 is subject, is the provision that ensures application by the courts of an enactment, notwithstanding any inconsistency with a recognised right:
4 Other enactments not affected –
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), –
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment –
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
[5] I am of the view that the presumption of fact in s 6(6) (“until the contrary is proved”) imposes on the accused a legal burden of proof. There is no other tenable meaning. The provision is not capable of being interpreted to mean that an evidential burden only is transferred, even applying the interpretative direction prescribed by s 6 of the New Zealand Bill of Rights Act. My reasons on the meaning of s 6(6) of the Misuse of Drugs Act do not differ in substance from those of the other members of the Court. I agree with them that the appeal must be dismissed in application of s 6(6) of the Misuse of Drugs Act, as s 4 of the New Zealand Bill of Rights Act requires despite any inconsistency with s 25(c).
[6] I am however unable to accept the methodology adopted by other members of the Court in application of s 6 of the New Zealand Bill of Rights Act. I do not agree that s 5 applies to the s 6 preference for a meaning consistent with the enacted rights and freedoms in Part 2. The sequence suggested, by which consideration of justification under s 5 is a necessary step in determining whether an enactment is consistent with a right under Part 2, would set up a soft form of judicial review of legislation which seems inconsistent with s 4 of the Act. More importantly, it distorts the interpretative obligation under s 6 from preference for a meaning consistent with the rights and freedoms in Part 2 to one of preference for consistency with the rights as limited by a s 5 justification. I do not think that approach conforms to the purpose, structure and meaning of the New Zealand Bill of Rights Act as a whole. It risks erosion of fundamental rights through judicial modification of enacted rights according to highly contestable distinctions and values.[3] The risk is I think illustrated by persistent suggestions that it is necessary to identify the content of rights by a balance to be struck in each case which weighs a wider public interest against the right.[4] It is exacerbated by arguments from s 5 that Part 2 of the Act is a statement of “reasonable rights”.[5]
[3]Ministry of Transport v Noort [1992] 3 NZLR 260 at p 296 (CA) per Gault J.
[4]See for example Brown v Stott [2003] 1 AC 681 (PC) and Sheldrake v Director of Public Prosecutions [2005] 1 AC 264.
[5]Rishworth, “Interpreting and Invalidating Enactments Under a Bill of Rights” in Bigwood (ed), The Statute: Making and Meaning (2004) 251, p 277.
[7] The content of the fundamental rights and freedoms recognised in Part 2 is itself a matter of statutory interpretation. Many of the rights recognised in Part 2 are qualified in their own terms or by necessary implication because they collide with other rights recognised in Part 2. The meaning of an enacted right therefore turns on the text, purpose and context of the New Zealand Bill of Rights Act. Part of the relevant context will be any qualifications in the expression of the right in the International Covenant on Civil and Political Rights.[6] In it, the right to be presumed innocent is unqualified. I consider that the right to be presumed innocent under s 25(c) is also unqualified and that it is unable to be restricted without denying the right. A reverse onus of proof is therefore in my view inconsistent with the right under s 25(c).
[6](1966) 999 UNTS 171 (ratified by New Zealand in 1978).
[8] The question whether s 6(6) of the Misuse of Drugs Act may be a demonstrably justified limitation of s 25(c) under s 5 is distinct from the s 6 question whether it can be interpreted consistently with s 25(c). The context for considering the interpretation of an enactment under s 6 is the human rights weighting provided by Parliament in the New Zealand Bill of Rights Act. Wider social ends are not to be identified and weighed by judges under s 6 to diminish the enacted rights. Justifications under s 5, on the other hand, may draw on the wider policy considerations behind the limiting enactment sought to be justified.[7] In my view, consideration of s 5 does not arise on the present appeal. The appeal is determined by the application of s 4 once it is accepted that s 6(6) of the Misuse of Drugs Act cannot be given a meaning which is consistent with s 25(c). In those circumstances, it is unnecessary to express any view on the question whether the Court may formally determine whether a limit is justifiable under s 5. I am inclined to think it a course available, where appropriate.[8] I express some tentative thoughts on the considerations which would arise in a case where justification properly arises for judicial assessment.
[7]As envisaged in A Bill of Rights for New Zealand: A White Paper (1985), paras [10.31] – [10.34].
[8]As suggested in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) and as Cooke P in Temese v Police (1992) 9 CRNZ 425 at p 427 (CA) was prepared to allow in an appropriate case.
[9] Since I am of the view that the question whether s 6(6) of the Misuse of Drugs Act is a justified limit under s 5 of the New Zealand Bill of Rights Act does not arise for determination on the appeal, I would have excluded on that basis the “legislative fact”[9] evidence proffered by the Crown to demonstrate justifiability. I also agree, however, with the other members of the Court that the evidence was put forward too late for it to have been fairly admitted in this appeal. The reception of such material may be important in a case where s 5 is directly in issue.
Interpretation and justification under the New Zealand Bill of Rights Act 1990
[9]As Professor Davis first identified in 1942 and developed further in his 1978 treatise Administrative Law, legislative facts are general facts, not concerning the immediate parties, which help the tribunal determine the content of law as a matter of policy. Kokott in The Burden of Proof in Comparative and International Human Rights Law (1998), pp 34 – 35 has drawn attention to the use of such evidence in human rights judging if courts are not to rely on intuitive judgments and to stretch judicial notice unacceptably.
[10] Part 2 of the Interpretation Act 1999 provides three “principles of interpretation”: ascertainment of the meaning of the legislation;[10] application of enactments “to circumstances as they arise”;[11] and a rule against retrospective effect.[12] Section 5 of the Interpretation Act provides the general approach to ascertaining the meaning of an enactment:
5 Ascertaining meaning of legislation –
(1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment.
[10]Section 5.
[11]Section 6.
[12]Section 7.
[11] To this general approach, s 6 of the New Zealand Bill of Rights Act adds a further principle of interpretation wherever the rights and freedoms in the Bill of Rights Act are affected by an enactment. Section 6, the text of which is set out in para [2], requires a meaning consistent with the rights and freedoms contained in the Bill of Rights Act to be given to an enactment wherever such consistent meaning “can” be given. The meaning of s 6 is itself to be seen in the context of the purposes of the Act. The Bill of Rights Act was enacted in 1990 with the stated purposes:
(a) To affirm, protect, and promote human rights and fundamental freedoms in New Zealand; and
(b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.
[12] In R v A (No 2)[13] Lord Steyn suggested that s 3 of the Human Rights Act 1998 (UK)[14] would require the courts sometimes to adopt “an interpretation which linguistically may appear strained”.[15] He thought s 6 of the New Zealand Bill of Rights Act to be a “slightly weaker model”,[16] a view he repeated in Ghaidan v Godin-Mendoza.[17] Lord Cooke, too, has suggested that s 3 of the United Kingdom Act “read as a whole, conveys, I think, a rather more powerful message”.[18]
[13][2002] 1 AC 45.
[14]Section 3 reads:
[15]At p 68.
[16]At p 67.
[17][2004] 2 AC 557 at para [44].
[18]R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 at p 374.
[13] Despite the considerable authority of these views, I am unable to accept that there is any material difference between the New Zealand and United Kingdom models. The direction to give an enactment a meaning that accords with the rights and freedoms contained in the New Zealand Bill of Rights Act where such interpretation “can” be given may as equally entail an interpretation which “linguistically may appear strained”, as where such interpretation is “possible”. Nor is this heretical. Apparent “linguistic” interpretation is not uncommonly displaced by context. Where fundamental rights are affected, particularly those protected by international covenants to which New Zealand is a party, apparent meaning yields to less obvious meaning under common law presumptions protective of bedrock values.[19] The common law had, I think, already evolved beyond requiring ambiguity before interpreting legislation to conform wherever possible with human rights instruments and fundamental values of the common law.[20] In any event, s 6 of the New Zealand Bill of Rights Act now makes it clear that textual ambiguity is not required; if an enactment “can” be given a meaning consistent with the New Zealand Bill of Rights Act, it must be given that meaning.[21] Section 6 is key to the policy of the New Zealand Bill of Rights Act to “promote” as well as “affirm” and “protect” human rights and fundamental freedoms in New Zealand.
[19]R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532; R v Pora [2001] 2 NZLR 37 (CA).
[20]R v Home Secretary, ex p Pierson [1998] AC 539; R v Secretary for Home Department, ex p Simms [2000] 2 AC 115; R (Wilkinson) v Inland Revenue Commissioners [2005] 1 WLR 1718 at para [17] per Lord Hoffmann.
[21]As was made clear in relation to s 3 of the Human Rights Act 1998 (UK) in Ghaidan v Godin-Mendoza at para [30] per Lord Nicholls; at para [44] per Lord Steyn; at para [67] per Lord Millett; at para [106] per Lord Rodger of Earlsferry; with Baroness Hale concurring on the point with Lord Steyn.
[14] I have not thought it helpful to refer to legislative intention in considering the meaning of s 6(6). The Law Commission recommended against reference to such “intention”.[22] The Interpretation Act as enacted follows instead the Law Commission’s emphasis on meaning, context and purpose. The principle in s 6 of the Interpretation Act that an enactment must apply to circumstances as they arise underscores the self-evident point that statutes must apply in conditions which may not have been foreseen at the time of enactment. The “very strong and far reaching”[23] obligation of interpretation under s 6 of the New Zealand Bill of Rights Act may also require a meaning to be given to a provision which was not envisaged at the time of its enactment. The point has recently been made by Lord Hoffmann in R (Wilkinson) v IRC:[24]
It may have come as a surprise to the members of the Parliament which in 1988 enacted the statute construed in the Ghaidan case that the relationship to which they were referring could include homosexual relationships. In that sense the construction may have been contrary to the “intention of Parliament”. But that is not normally what one means by the intention of Parliament. One means the interpretation which the reasonable reader would give to the statute read against its background, including, now, an assumption that it was not intended to be incompatible with Convention rights.
[22]New Zealand Law Commission, A New Interpretation Act to Avoid “Prolixity and Tautology” (NZLC R17, 1990), para [73].
[23][24]At para [18].
[15] As foreshadowed in para [6], I do not consider that s 5 of the New Zealand Bill of Rights Act forms part of the s 6 inquiry. The text of s 5 is set out in para [4]. It is not in its terms a rule of statutory interpretation, as s 6 of the Bill of Rights Act expressly is. It is directed to those enacting or prescribing limitations. In form, it prevents those enacting law from eroding the rights and freedoms contained in Part 2 of the New Zealand Bill of Rights Act. They can prescribe only such “reasonable limits … as can be demonstrably justified in a free and democratic society”. I do not accept that s 6 gives preference to a meaning consistent with limitations justified under s 5, if a meaning consistent with the unlimited right is tenable. It is not in my view necessary to go beyond the terms of s 6. It requires the meaning consistent with the rights and freedoms contained in Part 2 of the New Zealand Bill of Rights Act to be preferred. I agree with the view expressed by Cooke P in Noort[25] that the language of s 6 of the New Zealand Bill of Rights Act makes it clear that it applies to the right as expressed in Part 2, unmodified by any limit which conforms with s 5.
[25]At p 273.
[16] The use in s 5 of the same language of “rights and freedoms contained in this Bill of Rights” would make no sense if it referred to limited rights justified under it. The different wording of s 4 (with its reference to inconsistency “with any provision of this Bill of Rights” rather than “with the rights and freedoms contained in this Bill of Rights”) is necessary to make it clear that a limitation which cannot be justified under s 5 must nevertheless be given effect. Interpreting s 6 to refer to the rights identified in Part 2 without qualification is also consistent with the obligation under s 7, which would otherwise require the Attorney-General to draw to the attention of the House only provisions which are inconsistent with the rights as reasonably
limited.[26] Applying s 5 in interpreting legislation would require words to be read into s 6 to indicate that consistency is required only with the recognised rights as reasonably limited by law. That course is not required to give proper effect to the legislation.
[26]Compare Rishworth, “How does the Bill of Rights Work?” (1992) NZRL Rev, pp 198 – 199. Section 7 provides:
Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights –
Where any Bill is introduced into the House of Representatives, the Attorney-General shall, –
(a)In the case of a Government Bill, on the introduction of that Bill; or
(b)In any other case, as soon as practicable after the introduction of the Bill, –
bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.
[17] In addition to the textual aids to interpretation, the purpose of the New Zealand Bill of Rights Act is inconsistent with interpreting the rights in Part 2 in accordance with limitations justified under s 5. A preference for a meaning consistent only with the rights as limited under s 5 fails to respect the rights and freedoms as enacted by Parliament. Nor does it “promote” fundamental rights and freedoms. It entails interpreting the right in respect of which any limitation must be justified principally by reference to the limitation. Such methodology undermines the interpretative direction of s 6 and is likely to erode rights. Section 5 is not concerned with interpretation or the scope of the affirmed rights but with the legitimacy of restrictions upon them under a wider frame of reference than is provided by the rights in Part 2.
[18] Where the scope of a right affirmed by Part 2 is qualified[27] (so that the court must give it content in order to determine under s 6 whether another enactment is able to be interpreted consistently with the right), the meaning of the right must I think be ascertained by reference to the register provided by the New Zealand Bill of Rights Act, viewed in context (including the context provided by the International Covenant). So, for example, the scope of freedom of expression may be restricted if necessary to protect the reputations of others.[28] Similarly, freedom of movement may be restricted if necessary for the protection of public order or public health.[29] Without adherence to the standards to be taken from the text, purpose, and context of the Bill of Rights Act, the courts are cast on to contestable judgments, often with high policy content, which “balance” disparate and incommensurable values. Such an approach has the capacity to be highly destructive of enacted rights.[30] It is perhaps not surprising that suggestions of deference to legislative judgment feature prominently in some of the cases.[31] Such deference would not be faithful to s 6. The legislatively-conferred fundamental standards identified in Part 2 of the New Zealand Bill of Rights Act cannot be balanced in the s 6 inquiry against the wider community interests that might give rise to a justified limitation under s 5. The responsibility of the court under s 6 is to interpret other enactments consistently with the Part 2 rights if such interpretation is available.
[27]As indicated at para [37] I do not think the scope of the presumption of innocence gives rise to any such difficulty.
[28]As art 19 envisages.
[29]As provided by art 12.
[30]As Professor Ashworth has pointed out in connection with the presumption of innocence: Ashworth and Redmayne, The Criminal Process (3rd ed, 2005), pp 45 – 48; Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002), pp 116 – 118; “Sheldrake Case Comment” (2005) Crim LR 218. See also Montgomery v HM Advocate [2003] 1 AC 641 at p 670 (PC) per Lord Hope of Craighead; Tadros and Tierney, “The Presumption of Innocence and the Human Rights Act” (2004) 67(3) MLR 402; Dennis, “Reverse Onuses and the Presumption of Innocence: In Search of Principle” (2005) Crim LR 901.
[31]See for example Lord Hope in Kebilene at pp 380 – 381; Lord Nicholls in R v Johnstone [2003] 1 WLR 1736 at para [51].
[19] The provenance of s 5 also suggests that the rights with which consistency must be achieved under s 6 are not the rights as limited under s 5. Section 5 is patterned on s 1 of the Canadian Charter of Rights and Freedoms. It was enacted in the form proposed in the White Paper in which it would have fulfilled the same function as the Canadian s 1 in a Bill of Rights binding on Parliament. (The Bill as proposed for New Zealand in the White Paper contained no equivalent to s 4.) In Canada, the courts have the responsibility of deciding whether legislation which is inconsistent with the rights enacted in the Charter should nevertheless be applied. Under s 1 of the Charter, they must determine whether or not to disallow the provision on an assessment of its reasonableness in achieving a legitimate concern of a free and democratic society. Following the inclusion of s 4 in the Bill of Rights as enacted, the question of legitimacy under s 5 is not one the New Zealand courts are required to undertake. But that difference does not detract from the assistance to be obtained from the Canadian cases on the approach to s 1 of the Charter, an assistance explicitly envisaged in the White Paper[32] and in the advice appended to the Report of the Justice and Law Reform Select Committee.[33]
[32]At para [10.26(e)].
[33]“Inquiry into the White Paper – A Bill of Rights for New Zealand” (Interim Report) [1986-1987] X AJHR I.8A, pp 27 – 28.
[20] In the leading case of R v Oakes,[34] Dickson CJ (in whose judgment on this point all other members of the Supreme Court of Canada concurred) emphasised that the s 1 Charter inquiry as to justifiability is distinct from the prior question whether the human right is infringed by the legislation sought to be justified. The Court rejected the approach taken in the Ontario Court of Appeal, which construed the scope of the right to be presumed innocent[35] with reference to the limitation provision in s 1. The Court of Appeal[36] had regarded a “threshold question” to be
whether the reverse onus clause is justifiable in the sense that it is reasonable for Parliament to place the burden of proof on the accused in relation to an ingredient of the offence in question.
The Canadian Supreme Court, in rejecting that view, held that the meaning of a right guaranteed by the Charter was to be ascertained “in the light of the interests it was meant to protect”.[37] The purpose of the right in question was to be sought
by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and, where applicable, to the meaning and purpose of the other specific rights and freedoms …
[34][1986] 1 SCR 103.
[35]Section 11(d) of the Charter.
[36](1983) 145 DLR (3d) 123 at p 146.
[37]At para [28], quoting with approval the Court’s earlier decision in R v Big M Drug Mart Ltd [1985] 1 SCR 295 at p 344.
The interpretation of the right was therefore not assisted by s 1. Indeed, application of s 1 in ascertaining the meaning of s 11(d) was considered an inadequate protection of the presumption of innocence. Dickson CJ thought it “highly desirable” to keep s 1 “analytically distinct” from the interpretation of the right.[38]
[38]At para [60]. See Hogg, Constitutional Law of Canada (looseleaf, 1997), para [33.4(c)].
[21] The Canadian approach has also been adopted in South Africa,[39] where the Constitution contains a general limitation clause similar to s 5 of the New Zealand Bill of Rights Act and s 1 of the Canadian Charter.[40] There, too, the content of the right is assessed without reference to the limitation clause and “with reference to the terms in which the right is cast and to the constitutional values which are served by entrenching that right in the bill of rights”.[41]
[39]S v Zuma (1995) 2 SA 642 (CC).
[40]Section 36 of the Constitution of the Republic of South Africa.
[41]Chaskalson et al, Constitutional Law of South Africa (looseleaf, 1996), para [11-32].
[22] The approach adopted in Canada therefore is that the question of justified limits is a distinct and later inquiry. The first question is the interpretation of the right. In ascertaining the meaning of the right, the criteria for justification are not relevant. The meaning of the right is ascertained from the “cardinal values” it embodies.[42] Collapsing the interpretation of the right and the s 1 justification is insufficiently protective of the right. The later justification is according to a stringent standard, in which a party seeking to justify must show that the limit on a fundamental right is “demonstrably justified” in a free and democratic society. The context for the application of s 1 is then the violation of a constitutionally guaranteed right or freedom.
[42]R v Oakes at para [28].
[23] This reasoning is in my view equally compelling in the context of s 5 of the New Zealand Bill of Rights Act. Straining to graft s 5 into the interpretative direction under s 6 is not necessary to give it work to do in a Bill of Rights containing s 4. As s 3 makes clear, the New Zealand Bill of Rights Act is directed not only at those interpreting and applying the enacted rights and freedoms.[43] Section 5 is directed to those making or advising on the making of legal prescriptions potentially limiting of Part 2 rights and freedoms. In addition, as indicated, s 5 may give rise to a substantive determination of compliance.
[43]Section 3 provides:
Application –
This Bill of Rights applies only to acts done –
(a)By the legislative, executive, or judicial branches of the government of New Zealand; or
(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
[24] Professor Brookfield, in a comment on Noort, expressed the view that Cooke P was “clearly correct” to draw attention to the differences in wording between ss 4, 5, and 6.[44] He, too, considered that s 6 was:
… surely sufficient in itself, without recourse to s 5, to ensure that an enactment apparently abridging a right or freedom is interpreted so far as possible consistently with that right or freedom. Such limitations on the right as are implied in the abridgement must of course be given effect under s 4, in the sense that the Court may not (a) hold them impliedly repealed or revoked, or in any way invalid or ineffective; or (b) decline to apply them.
[44]“Constitutional Law” (1992) NZRL Rev 231, p 239.
Nevertheless, Professor Brookfield suggested that there might still be a role for the courts in relation to s 5 in making a formal declaration of inconsistency (or consistency) with “any provision of this Bill of Rights”, including s 5, at least in a case of serious infringement or unfounded concern about violation. It was in response to this suggestion of a declaratory response after s 6 had been exhausted as a matter of interpretation that Cooke P in Temese[45] allowed the possibility (while expressing some doubt as to its appropriateness) that a court might go on to consider compliance with s 5 in an appropriate case. The same possibility was identified as a fourth step in the analysis in Moonen. For present purposes it is sufficient to note that Temese does not seem to represent any modification of the view expressed by Cooke P in Noort that s 6 requires consistency with the rights and freedoms enacted in Part 2 and not as limited by a s 5 assessment.[46] For the reasons given, I am of the view that the approach indicated by Cooke P and Gault J in Noort is to be preferred to that accepted by Richardson, Hardie-Boys and McKay JJ. It accords with the text and scheme of the New Zealand Bill of Rights Act. It also avoids the risk of erosion of rights through judicial interpretation of the enacted rights on the basis of limitations justifiable under s 5.
[45]At p 427.
[46]Compare the reasons of McGrath J at para [186] below.
[25] Under s 25(c), the appellant had the right to be presumed innocent until proved guilty in the determination of the charge of possession of cannabis for the purpose of supply. Under s 6 of the New Zealand Bill of Rights Act, a meaning consistent with that right was therefore to be preferred over any other meaning that could be given to any enactment prescribing the procedure for determination of the charge against him. In Ghaidan v Godin-Mendoza, members of the House of Lords acknowledged that a Convention-compliant interpretation might not be possible in a particular case.[47] If such meaning would be incompatible with the basis of the legislation, or would entail judicial “legislation” rather than interpretation, then it is not open, despite the strength of the interpretative direction under s 3 of the Human Rights Act 1998 (UK). The same is true of s 6 of the New Zealand Bill of Rights Act. While a meaning consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act must be preferred if it “can” be given to an enactment, it must be a meaning that is tenable on the text and in the light of the purpose of the enactment.
The human right to be presumed innocent
[47]Lord Nicholls at para [33]; Lord Steyn at para [50]; Lord Millett at para [68]; Lord Rodger of Earlsferry at para [112]; with Baroness Hale concurring on the point with Lord Steyn.
[26] The presumption of innocence protects against error in criminal process. It is an aspect of fair trial. The purpose of the presumption was explained by Justice Brennan of the United States Supreme Court:[48]
There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value – as a criminal defendant his liberty – this margin of error is reduced as to him by the process of placing on the other party the burden … of persuading the fact finder at the conclusion of the trial of his guilt beyond a reasonable doubt.
[48]Speiser v Randall 357 US 513 at pp 525 – 526 (1958).
[27] A legal presumption identifies who must prove the case. The presumption of innocence has this effect. It establishes that the burden of proof of guilt in criminal cases is carried by the prosecution. The common law rule that the prosecution must prove guilt even where an affirmative defence is put forward has not been in doubt since Woolmington v Director of Public Prosecutions.[49] The only common law exception was insanity, an excuse which is extraneous to the offence charged and which has been treated as a special case.[50] Viscount Sankey LC in Woolmington acknowledged that the general common law rule was subject to modification by statute. And statutory burdens of proof upon an accused have long featured in criminal enactments in New Zealand, as in other jurisdictions. From 1948, the “golden thread” of the common law has however been recognised as a human right, in international instruments to which New Zealand is a party.
[49][1935] AC 462.
[50]In New Zealand the common law rule is now expressed in s 23(1) of the Crimes Act 1961. In Canada the insanity exception has been held to be inconsistent with the Charter presumption of innocence, but justified under s 1: R v Chaulk [1990] 3 SCR 1303.
[28] The right to be presumed innocent until proved guilty contained in art 11(1) of the Universal Declaration of Human Rights[51] and later in art 14(2) of the International Covenant on Civil and Political Rights is unqualified. Article 14(2) of the International Covenant provides:
Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.
[51](1948) UNGA Res 217 A(III).
The presumption of innocence is an independent right, contained in a stand-alone provision which stands apart from the right to fair trial in art 14(1) and the “minimum guarantees” in art 14(3). That separation was deliberately adopted to emphasise the significance of the presumption.[52]
[52]Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2nd rev ed, 2005) records at p 329 that the Human Rights Commission had sought to bundle the presumption of innocence with the other aspects of fair trial, but that the Committee of the General Assembly decided, on a British motion, that the presumption of innocence required additional emphasis.
[29] Section 25 of the New Zealand Bill of Rights Act enacts as New Zealand domestic law “minimum standards of criminal procedure” drawn from the International Covenant. Under it:
25 Minimum standards of criminal procedure –
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
…
(c) The right to be presumed innocent until proved guilty according to law.
Since 1990 therefore the presumption of innocence has been enacted as a minimum standard of criminal procedure in domestic law under the New Zealand Bill of Rights Act. The important legislative purpose contained in s 25(c) suggests the need to reassess the meaning of enacted statutory presumptions. Indeed the White Paper, which preceded enactment of the New Zealand Bill of Rights Act, identified that existing reverse onuses of proof such as s 6(6) of the Misuse of Drugs Act were likely to be the subject of new scrutiny under the Bill.[53]
Legal and evidential burdens
[53]At paras [10.114] – [10.121].
[30] A party who has a burden of proof must establish the case to the standard required by law, whether beyond reasonable doubt or on the balance of probabilities.[54] The risk of non-persuasion is borne by the party who carries the burden. This is the legal burden of proof. In criminal cases the effect of s 25(c) of the New Zealand Bill of Rights Act is that the legal burden of proof is on the prosecution. The accused is presumed to be innocent. Where the standard of proof is beyond reasonable doubt, the party with the legal onus of proof will not succeed unless he eliminates reasonable doubt. Where the standard of proof is on the balance of probabilities, the party with the legal onus of proof will not succeed unless he demonstrates that his proposition is more likely than not. It is the effect on outcome that is the critical distinction between an onus which is legal and one which is purely evidentiary.[55]
[54]It is not necessary for present purposes to consider whether proof beyond reasonable doubt is, as suggested by Kokott, “a corollary of the presumption of innocence” (p 126). See also Underwood, “The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases” (1977) Yale LJ 1299.
[55]As Dickson CJ said in R v Whyte [1988] 2 SCR 3 at para [32], “It is the final effect of a provision on the verdict that is decisive.”
[31] Who carries the legal burden of proof is determined by substantive law. Who carries the evidential burden is determined by the adjectival (procedural) law of evidence. What is sometimes referred to as the evidential burden is the burden of raising an issue in answer to the case by showing its relevance on the evidence.[56] Lord Devlin in giving the judgment of the Privy Council in Jayasena v R[57] explained the evidential onus on an accused in relation to a defence:
Some evidence in support of such an answer must be adduced before the jury is directed to consider it; but the only burden laid upon the accused in this respect is to collect from the evidence enough material to make it possible for a reasonable jury to acquit.
[56]The phrase is confusing. Sir Nicholas Browne-Wilkinson VC has warned “[i]n my experience, every time the phrase ‘evidential burden’ is used it leads to error…”: Brady v Group Lotus Car Cos Plc [1987] 2 All ER 674 at p 687 (CA).
[57][1970] 1 AC 618 at p 623.
As this explanation suggests, it is not necessary for the evidence which discharges the evidential burden to have been called by the party with the burden: it is enough that he can point to evidence before the court which sufficiently raises the issue.[58]
[58]Byrne and Heydon, Cross on Evidence (Aust ed) (looseleaf, “The Burden of Proof and Presumptions”, 1996), para [7015] (last updated January 2007); Cross on Evidence (NZ ed) (looseleaf, “Burden of Proof and Presumptions”, 2005), para [4.4] (last updated December 2006). The point is also made by Sir Francis Adams in “Onus of Proof in Criminal Cases” in Clark (ed), Essays on Criminal Law in New Zealand (1971) 67, p 69.
[32] The need to discharge an evidential burden is most familiar in the case of an affirmative defence. If no evidential basis is made out for an affirmative defence, the party with the burden of proof can resist an application that there is no case to answer on the basis that the defence has not been excluded. In criminal cases, once an evidential foundation for an affirmative defence is made out, the question can be left to the jury. The jury, as the trier of fact, is not concerned with the evidential burden. That is why, in a phrase attributed to Wigmore, the evidential burden is described as “passing the judge”.[59] It does not shift the legal burden of proof. Once the issue is sufficiently raised on the evidence, the party with the burden of proof must still persuade the trier of fact that it is not an answer to the case.
[59]Wigmore on Evidence (Chadbourn rev 1981), vol 9, para [2487].
[33] A presumption of fact amounts to a rule about how frequently occurring circumstantial evidence may be put before the court and what inferences may be taken from it.[60] It creates an evidential burden on the party against whose interests the presumption operates by requiring him to point to evidence upon which the trier of fact could find against the presumption. A presumption of fact need not impose a legal burden of proof unless, if unrebutted by the accused, it is conclusive of guilt. A presumption, for example, that a certain quantity of drugs is more than a moderate user of the drug would usually consume in a given period of time is circumstantial evidence from which the trier of fact may conclude a purpose of supply or sale. But if it does not compel the conclusion of guilt unless the accused disproves that purpose, it imposes an evidential burden only. The trier of fact must still be carried by all the evidence to conviction on the appropriate standard of proof. So, if left with a reasonable doubt about the purpose of supply in a prosecution for possession for the purpose of supply, the jury must acquit.
[60]Cross on Evidence (Aust ed), para [7255]; R v Oakes at para [20].
[34] If an unrebutted presumption compels the verdict,[61] it operates to transfer a legal onus of proof. The same is true of any provision which has the effect of requiring the accused to exculpate himself. As Lord Steyn pointed out in R v Lambert,[62] the difference between an element of the offence and issues of defence or excuse often depends simply on the drafting technique adopted. If the jury may convict if left in doubt about the culpability of the accused, he bears a legal onus of proof. And, for reasons explained by Dickson CJ in the Supreme Court of Canada in R v Whyte,[63] “[w]hen that possibility exists, there is a breach of the presumption of innocence”:
The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused.
[61]As the Judge’s direction in the present case indicates, quoted in fn 1 above.
[62][2002] 2 AC 545 at para [35].
[63]At paras [31] – [32].
[35] A reverse onus is on its face inconsistent with the presumption of innocence. The European Court of Human Rights has however held that art 6(2) of the European Convention on Human Rights[64] is not absolute. In Salabiaku v France[65] and in Janosevic v Sweden[66] it has held that a reverse onus is not incompatible with the Convention right if the means employed are reasonably proportionate to a legitimate aim. On that approach, the contracting states “are required to strike a balance between the importance of what is at stake and the rights of the defence”.[67] It is not
clear that the Court had in mind exclusion of any independent assessment in the trier of fact.[68] The House of Lords has however relied on Salabiaku in holding that the presumption of innocence may be restricted.[69]
[64](1950) 213 UNTS 221.
[65](1988) 13 EHRR 379.
[66](2004) 38 EHRR 473.
[67]Janosevic at para [101].
[68]In Salabiaku at para [28], the European Court of Human Rights indicated that a presumption should not “strip the trial court of any genuine power of assessment and deprive the presumption of innocence of its substance” (emphasis added). For that reason presumptions “of fact or of law” are not regarded with indifference. Article 6(2) “requires States to confine them within reasonable limits which take into account the importance of what is at stake and maintain the rights of the defence” (emphasis added).
[69]R v Lambert (foreshadowed by Kebilene), R v Johnstone and Sheldrake.
[36] The presumption of innocence is unqualified in the International Covenant on Civil and Political Rights, which the New Zealand Bill of Rights Act affirms. Moreover, while the International Covenant expressly permits restrictions on rights such as freedom of thought, conscience and religion[70] and freedom of expression,[71] and indicates the basis upon which such limitations can be made, no such licence is given in relation to the rights to fair trial and to be presumed innocent.[72] It seems well arguable, from the otherwise unaccountable absence in the International Covenant of any register of values against which limitations can be considered,[73] that these rights cannot be restricted as a matter of international obligation, although they may be subject to derogation in emergencies.[74] Whether or not that view is correct in international law, the same effect in my view follows from the nature of the right contained in s 25(c) of the New Zealand Bill of Rights Act.
[70]Article 18.
[71]Article 19.
[72]Article 14.
[73]As in the reasons of necessity to protect “public safety, order, health, or morals or the fundamental rights and freedoms of others” (by which art 18 may be limited), and those necessary to “respect the rights or reputations of others” or to protect “national security” or “public order”, or “public health or morals” (by which art 19 may be limited).
[74]Article 4 of the International Covenant permits derogation “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…”. (Even then, states may derogate from the obligations under the International Covenant only to the extent “strictly required by the exigencies of the situation” and provided such measures are not incompatible with other obligations under international law and not involving discrimination “solely on the ground of race, colour, sex, language, religion or social origin”.) The Human Rights Committee of the United Nations and those who adopted the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights have taken the view that, because the procedural rights underpin non-derogable rights, the fundamental principles of fair trial, including the presumption of innocence, must be observed even in an emergency: “General Comment 29: States of Emergency” (2001) UN Doc CCPR/C/21/Rev.1/Add.11, para [16]; Siracusa Principles, cl 70. On this view, the procedural rights to fair trial are “functionally non-derogable”: Joseph, “Human Rights Committee: General Comment 29” (2002) 2 HRLR 81, p 94.
[37] Section 25 is enacted under the heading “minimum standards of criminal procedure”. The right to be presumed innocent is available to “everyone who is charged with an offence”. Section 25(c) is unqualified in its own terms. In that respect it is to be contrasted with rights such as those to be protected from “unreasonable” search and seizure or to “fair” trial, which necessarily require some assessment of the scope of the right. No such assessment is required in relation to the presumption of innocence. It is an unmistakable allocation of the burden of proof which is denied by a provision such as s 6(6) of the Misuse of Drugs Act.
[38] It seems to me to be nonsense to speak of a restricted right to fair trial in respect of an offence, because it would permit unfair trial. Similarly, it seems to me to be nonsense to restrict the right to trial before an impartial tribunal, because it would permit trial before a tribunal which is partial. Any restriction denies the right. In the same way, I think it nonsense to speak of the right to be presumed innocent as a restricted right. Under s 25(c), the right to be presumed innocent is given to everyone charged with any offence. A reverse onus excludes the right to be presumed innocent in respect of the offence charged. In the case of s 6(6) of the Misuse of Drugs Act, it permits the conviction of those who are as likely as not to have no intention of supplying others, but who cannot overcome the persuasive burden. I would therefore not follow the assertions in Salabiaku and the cases which have applied it that this unqualified right is not absolute.[75] In my view s 25(c) describes an unqualified right to be presumed innocent and any restriction on it is inconsistent with s 25(c).
Section 6(6) of the Misuse of Drugs Act imposes a legal burden of proof
[75]See Ashworth (2002), pp 108 – 118.
[39] I am unable to accept that “until the contrary is proved” in s 6(6) can be interpreted as meaning “unless there is evidence to the contrary”. I reach this conclusion with reluctance, given the contrary view expressed by the House of Lords in R v Lambert and confirmed in Sheldrake and despite the weight brought to the argument by Professor Glanville Williams.[76] As already explained, an evidential burden imposes no onus of persuasion at all. It simply raises an issue for determination. Pointing to credible evidence for the trier of fact to consider may raise a reasonable doubt, but because it discharges no onus of persuasion it cannot properly be described as “proof” contrary to the presumption. That is plainly not what is provided for by s 6(6) when it “deems” a purpose of supply “until the contrary is proved”. As Cooke P held for the Court of Appeal in R v Phillips, “until the contrary is proved” does not mean “unless sufficient evidence is given to the contrary”. Moreover, no evidential threshold needs to be raised to put the purpose of possession in issue here. It is critical to culpability. There is no question of “passing the judge”. The jury is seized of the question of purpose but s 6(6) requires that it must be decided against the accused unless he “proves” on the balance of probabilities an “innocent” purpose. That is a statutory allocation of the legal burden of proof. [77] The accused must persuade the jury of his innocence. Even applying s 6 of the New Zealand Bill of Rights Act, I do not think that s 6(6) “can” be given the meaning that the burden is discharged by evidence which could be taken by the jury to raise a reasonable doubt.
Justifiable limits?
[76]“The Logic of ‘Exceptions’” [1988] 47(2) CLJ 261. Sir Francis Adams disagreed with Professor Williams in Criminal Onus and Exculpations (1968), p 47, and in “Onus of Proof in Criminal Cases” in Clark (ed), pp 68 – 70.
[77]See also Adams, “Onus of Proof in Criminal Cases” in Clark (ed), p 78.
[40] It is unnecessary to consider whether s 6(6) can be justified under s 5 of the New Zealand Bill of Rights Act. But I raise some matters that will require consideration in a case where s 5 is in issue, because of the discussion undertaken by other members of the Court.
[41] I have some doubt whether the presumption of innocence can be “limited” under s 5, for much the same reasons I conclude that the right itself is not able to be restricted: any “limitation” of the presumption of innocence effectively denies the right altogether. In this connection, some Canadian authorities have drawn a distinction between a limitation on a right and a “truly complete denial of a guaranteed right”.[78]
[78]Ford v Quebec (Attorney-General) [1988] 2 SCR 712 at p 773; Attorney-General (Quebec) v Quebec Protestant School Boards [1984] 2 SCR 66. If the right to be presumed innocent under the International Covenant is “functionally non-derogable”, as the Siracusa Principles suggest, the argument against limitation is strengthened.
[42] As I have already indicated, I think it is important not to collapse the s 5 assessment into the interpretation of the right. Where s 5 is however in issue because an enactment inconsistent with the right, properly interpreted, is sought to be justified, the approach taken by the Supreme Court of Canada in R v Oakes and the cases which have followed it is helpful.[79] The objective sought to be achieved by the limiting provision must be of sufficient importance to warrant infringement of a fundamental human right. The limitation must be no more than is reasonably necessary to achieve the purpose. The objective against which a provision is justified cannot be wider than can be achieved by the limitation of the right.[80]
[79]Dagenais v Canadian Broadcasting Corp [1994] 3 SCR 835; Libman v Quebec (Attorney‑General) [1997] 3 SCR 569.
[80]So, for example, a majority in the Supreme Court of Canada in RJR-MacDonald Inc v Canada(Attorney-General) [1995] 3 SCR 199 at p 335 took the view that a ban on tobacco advertising could not be justified as “protecting public health”, but only “to prevent people in Canada from being persuaded by advertising and promotion to use tobacco products”.
[43] The ends which might justify a limitation of the human right to be presumed innocent must relate to the particular difficulties of proof or detection which are the immediate reason for the limitation of the right. The practicalities of proof, the risk of conviction of the innocent, and the penalties applicable on conviction are likely to be key when assessing whether a reverse onus of proof is justified. Such onus may perhaps be justified where an accused is well-placed to prove a licence or formal qualification,[81] especially if significant criminality is not in issue. It may also be more readily justified where the accused has assumed a particular risk.[82] If an unrebutted presumption compels a verdict of significant criminal culpability,[83] however, the better view may be that the prosecution must always bear the onus of proof and a reverse onus is not justified. Wider ends of criminal justice would not be sufficient justification, on this view. The public interest in repressing drug taking is addressed by the substantive statutory provisions establishing criminality and penalties. It may also be reflected in the resources applied to detection and prevention. The same is true of other prevalent and serious crimes. Exclusion of the right to be presumed innocent in respect of such crimes would undermine the right enacted as a minimum standard. Sachs J of the Constitutional Court of South Africa expressed the reasons in relation to a case of corporate fraud:[84]
Much was made during argument of the importance of combating corporate fraud and other forms of white collar crime. I doubt that the prevalence and seriousness of corporate fraud could itself serve as a factor which could justify reversing the onus of proof. There is a paradox at the heart of all criminal procedure, in that the more serious the crime and the greater the public interest in securing convictions of the guilty, the more important do constitutional protections of the accused become. The starting point of any balancing enquiry where constitutional rights are concerned must be that the public interest in ensuring that innocent people are not convicted and subjected to ignominy and heavy sentences, massively outweighs the public interest in ensuring that a particular criminal is brought to book. Hence the presumption of innocence, which serves not only to protect a particular individual on trial, but to maintain public confidence in the enduring integrity and security of the legal system. Reference to the prevalence and seriousness of a crime therefore does not add anything new or special to the balancing exercise. The perniciousness of the offence is one of the givens, against which the presumption of innocence is pitted from the beginning, not a new element to be put into the scales as part of a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, house-breaking, drug-smuggling, corruption…the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial cases.
[81]See Dennis, pp 919 – 921.
[82]See R v Johnstone.
[83]The touchstone suggested by Lord Steyn in R v Lambert at para [35]; and see Dennis, pp 921 – 925.
[84]S v Coetzee (1997) 3 SA 527 at para [220].
[44] It is difficult to see that evidential difficulties for the prosecution in the present case could not have been sufficiently addressed by a presumption of fact which leaves the onus of proof on the prosecution.[85] It is not at all clear that there is any principled basis upon which the risk of non-persuasion and therefore the risk of wrongful conviction is properly transferred to someone accused of drug dealing. Simply making it easier to secure convictions is not a principled basis for imposing a reverse onus of proof, as the House of Lords held in R v Lambert.
Conclusion
[85]In the manner of the presumption referred to in para [33], and as Ashworth and Redmayne, and Dennis, suggest. Compare Lord Hutton in R v Lambert at para [192].
[45] Section 6(6) of the Misuse of Drugs Act imposes a legal onus on the accused. The direction given to the jury was therefore correct. I would dismiss the appeal.
BLANCHARD J
[46] Mr Hansen was convicted after a jury trial in the Invercargill District Court on a charge under s 6(1)(f) of the Misuse of Drugs Act 1975 of being in possession of cannabis plant for a purpose specified in para (d) or (e) of that subsection, namely supply to a person under 18 years of age or sale to a person of or over that age. He had been found on 26 May 2003 at his home in joint possession with another man of in excess of 28 grams of cannabis plant – indeed, considerably more than that quantity, for there was approximately 375 grams of clipped cannabis head as well as 1520 grams of other cannabis plant material.
[47] The issue at Mr Hansen’s trial was whether his possession of the drug was for the requisite purpose. Section 6(6) of the Act provided at that time:
(6) For the purposes of paragraph (f) of subsection (1) of this section, a person shall until the contrary is proved be deemed to be in possession of a controlled drug for a purpose set out in paragraph (c), paragraph (d), or paragraph (e), as the case may require, of that subsection if he is in possession of any of the following:
…
(e) Five grams or more of any cannabis preparation as described in the Schedule 2 to this Act, or 28 grams or more of cannabis plant as described in the Schedule 3 to this Act…
Since that time the specification of the quantities of the drugs to which the subsection applies has been removed to Schedule 5 of the Act, and the subsection re-enacted in the following form:
(6) For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).
Section 2(1A) now reads:
Any reference in this Act to an amount, level, or quantity at and over which a controlled drug is presumed to be for supply is a reference to the amount, level, or quantity specified in Schedule 5.
[48] It is not suggested that the amendments in 2005 are material to the determination of the question which this Court must decide. That question is whether, when read with the right of a person charged with an offence to be presumed innocent until found guilty according to law,[86] s 6(6) imposes on a defendant a legal burden of proof on the balance of probabilities. The jury had been directed on that basis.
[86]Affirmed by s 25(c) of the New Zealand Bill of Rights Act 1990.
[49] The Court of Appeal[87] was not persuaded to depart from its earlier decision in R v Phillips,[88] which held that the accused did face a legal burden of proof under the subsection. Following the analytical approach proposed in relation to ss 4 – 6 of the New Zealand Bill of Rights Act 1990 in Moonen v Film and Literature Board of Review,[89] the Court concluded that s 6(6) was only properly capable of bearing one meaning. It rejected a submission citing the decision of the House of Lords in R v Lambert[90] and arguing that for consistency with the Bill of Rights the expression “until the contrary is proved” must be read as imposing on a defendant no more than an evidential burden. The Court of Appeal considered the word “proved” was fatal to this argument. Raising an issue as to a particular element of a crime could not be said to be “proof”. The Court referred to a statement by Lord Bingham of Cornhill in Sheldrake v Director of Public Prosecutions that:[91]
An evidential burden is not a burden of proof. It is a burden of raising, on the evidence in the case, an issue as to the matter in question fit for consideration by the tribunal of fact.
[87]R v Hansen (Court of Appeal, CA 128/05, 29 August 2005) (Robertson, Williams and Wild JJ).
[88][1991] 3 NZLR 175.
[89][2000] 2 NZLR 9 (CA).
[90][2002] 2 AC 545.
[91][2005] 1 AC 264 at para [1].
[50] In this Court, counsel for the Crown sought leave to adduce evidence from police officers and other persons with knowledge relating to drug trafficking and use in New Zealand. This evidence apparently included unpublished material, some said to be of a confidential nature, concerning patterns in the supply and use of cannabis in New Zealand and the policies and strategies of law enforcement authorities in combating illicit drug supply. Ms Vidal, for the appellant, objected to the tendering of this evidence at this stage of the case and the Court declined to receive it. That decision in the particular circumstances of the present case should not be taken as any general indication that in future cases the receipt of evidence of legislative fact would necessarily be precluded.
The natural meaning
[51] In R v Siloata[92] there was a reminder from this Court that the presumption of innocence is a long-standing tenet of the criminal law and that there is a fundamental rule that it is for the Crown to prove all elements of the crime charged beyond reasonable doubt. There was also confirmation that s 25(c) of the Bill of Rights affirms the presumption of innocence as a minimum standard of our criminal procedure but “subject always to statutory modification by Parliament”.
[92][2005] 2 NZLR 145 at para [34].
[52] When, in Woolmington v Director of Public Prosecutions, Viscount Sankey LC spoke of the golden thread throughout the web of the English criminal law, that it is the duty of a prosecution to prove the prisoner’s guilt, he said that duty was subject to the (common law) defence of insanity and “subject also to any statutory exception”.[93] After Woolmington it was appreciated that, as the Eleventh Report of the Criminal Law Revision Committee put it, all the common law burdens on the defence except that of proving insanity were evidential burdens.[94] That committee, which deprecated persuasive burdens and would have abolished them even for an insanity defence, nonetheless considered that in the typical case of a statutory statement such as “unless he proves the contrary”, it would be held that the burden on the accused was still a persuasive one.[95] This, the committee thought, was in accordance with the reasoning of Lord Devlin, for the Judicial Committee, in Jayasena v R.[96] Lord Devlin recorded that their Lordships did not understand what was meant by the phrase “evidential burden of proof”:[97]
They understand of course that in trial by jury a party may be required to adduce some evidence in support of his case, whether on the general issue or on a particular issue, before that issue is left to the jury. How much evidence has to be adduced depends on the nature of the requirement. It may be such evidence as, if believed and if left uncontradicted and unexplained, could be accepted by the jury as proof. Or it may be, as in English law when on a charge of murder the issue of provocation arises, enough evidence to suggest a reasonable possibility. It is doubtless permissible to describe the requirement as a burden and it may be convenient to call it an evidential burden. But it is confusing to call it a burden of proof. Further, it is misleading to call it a burden of proof, whether described as legal or evidential or by any other adjective, when it can be discharged by the production of evidence that falls short of proof. The essence of the appellant’s case is that he has not got to provide any sort of proof that he was acting in private defence. So it is a misnomer to call whatever it is that he has to provide a burden of proof.
[93][1935] AC 462 at p 481.
[94]Criminal Law Revision Committee, Eleventh Report: Evidence (General) (Cmnd 4991, 1972), para [139].
[95]At paras [139] – [140].
[96][1970] AC 618.
[97]At p 624.
[53] When the reverse onus in relation to possession of drugs appeared in the Misuse of Drugs Act in 1975, legislators would have understood that they were requiring an accused to prove on the balance of probabilities that the possession of the stipulated minimum quantity of a drug was not for the purpose of sale. The standard of proof upon a reverse onus was well established and had been confirmed by the Privy Council and the English Court of Appeal post-Woolmington.[98]
[98]Sodeman v Regem (1936) 55 CLR 192 at p 233 (PC); R v Carr-Briant [1943] KB 607 at p 612 (CA).
[54] In Phillips, which was decided after the enactment of the Bill of Rights, the Court of Appeal rejected the view that in s 6(6) of the Misuse of Drugs Act the expression “until the contrary is proved” could be taken to mean “unless sufficient evidence is given to the contrary”. Delivering the judgment of the Court, Cooke P said that it was not persuaded that the ordinary and natural meaning of the word “proof” or “proved” was capable of extending so far. This would, he said, be a “strained and unnatural interpretation” which even with the aid of the Bill of Rights the Court would not be justified in adopting. Section 6(6) was “simply not open” to that interpretation.[99]
[99]At p 177.
[55] There can certainly be no doubting Parliament’s understanding in 2005 when it re-enacted s 6(6) as a consequence of the statutory establishment of the Expert Advisory Committee on Drugs and the removal of the listing of specified quantities of drugs to a Schedule to the Act. The presumption against the accused “until the contrary is proved” was repeated after Parliament had received a report from the Attorney-General under s 7 of the Bill of Rights. The report took the form of advice from the Crown Law Office which stated several times that an accused was required to disprove the presumption in s 6(6) on the balance of probabilities.
[56] Accordingly, even in a Bill of Rights environment, it would be over-stretching the language of a provision that spoke of a person “deemed” (the pre-2005 version of s 6(6)) or “presumed” (as s 6(6) now reads) to have the relevant purpose, “until the contrary is proved”, to give it a meaning which required of the accused no more than adducing or pointing to evidence which made the purpose of possession a live issue. The language used by Parliament in s 6(6), both in its present form and as it stood when Mr Hansen was found in possession of cannabis, was not “obscure or ambiguous”;[100] indeed, it could hardly have been clearer.
Application of ss 4, 5 and 6 of the Bill of Rights
[100]Sheldrake at para [7] per Lord Bingham.
[57] In a case such as this, when the natural meaning of a legislative provision and the obvious Parliamentary intention coincide, the starting point for the application of the Bill of Rights must be to examine that meaning against the relevant guaranteed right – in this case, s 25(c) – to see if it apparently curtails the right so as to engage the Bill of Rights’ interpretive provisions (ss 4, 5 and 6). If these provisions are engaged, the natural meaning may be adopted only in one of two circumstances. Either an application of s 5 may reveal that, because the limit placed by the meaning upon the right is a “demonstrably justified” one, its adoption will not in fact result in inconsistency with the Bill of Rights or, failing that, the provision may not be reasonably capable of bearing any other meaning.
[58] To begin casting around for other potential meanings of a provision as soon as a prima facie incursion upon a guaranteed right is identified does not give adequate recognition to the role of s 5 in the interpretive process. Nor would such an approach recognise that a meaning dictated by the application of standard interpretation principles[101] should be adopted unless the Bill of Rights actually precludes it.
[101]Including, of course, the basic direction in s 5(1) of the Interpretation Act 1999 that the meaning of an enactment “must be ascertained from its text and in the light of its purpose”.
[59] Although s 6 directs the court to prefer a meaning consistent with the rights and freedoms contained in the Bill of Rights, the scope of the individual rights and freedoms enumerated in Part 2 must be seen as constrained in context by other sections in the Bill of Rights, and in particular the provision for justified limits in s 5. It would surely be difficult to argue that many, if any, statutes can be read completely consistently with the full breadth of each and every right and freedom in the Bill of Rights. Accordingly, it is only those meanings that unjustifiably limit guaranteed rights or freedoms that s 6 requires the court to discard, if the statutory language so permits.
[60] If the natural meaning of a statutory provision does appear to limit a guaranteed right, the appropriate next step is to consider whether that limit is a justified one in terms of s 5. If it is, the meaning is not inconsistent with the Bill of Rights in the sense envisaged by s 6, and should be adopted by the court. It is only when that natural meaning fails the s 5 test that it is necessary to consider whether another meaning could legitimately be given to the provision in issue. If the words of the provision in their context are not capable of supporting a different and Bill of Rights consistent meaning, s 4 requires the court to give effect to the provision in accordance with its natural meaning notwithstanding the resulting inconsistency with the Bill of Rights.
[61] It may be said that this approach to ss 4 – 6 is not the one taken in Moonen[102] but in that case there was no meaning that, from the language and history of the Act and the circumstances at the time of its enactment, was obviously the one intended by the legislature. Moreover, it was indicated in Moonen itself that other approaches
could be open which would probably lead to the same result in the case. The Bill of Rights does not mandate any one method or sequence of application for applying and reconciling ss 4 – 6 in a given case. Those sections are broadly complementary but not necessarily always harmonious. When new situations arise it is necessary to approach them in a way which is best suited in the circumstances to give effect to what appears to be the overall Parliamentary intention. This intention must be taken to be a compound one, involving the specific intention to be discerned from the provision in issue read in light of the general overriding directions in ss 4 – 6.[103] In situations like the present, where the specific intention relating to an issue plainly within the contemplation of the legislators is clear, it is particularly important for that intention to be respected. Section 6 can only dictate the displacement of what appears to be the natural meaning of a provision in favour of another meaning that is genuinely open in light of both its text and its purpose.
[102]At paras [15] – [20].
[103]See R (Wilkinson) v Inland Revenue Commissioners [2005] 1 WLR 1718 at paras [16] – [17] per Lord Hoffmann.
[62] The above approach is, as McGrath J points out in his reasons for judgment, very much the same as that which finds favour with him and with Tipping J, albeit that in applying it I come to a different conclusion on the particular statutory provision in the Misuse of Drugs Act.
Justified limitation
[63] In this case it is conceded that the reverse onus in s 6(6) does prima facie breach s 25(c). Indeed, Parliament was so advised by the Attorney-General in the s 7 report in 2005. It was also advised, however, that in this context the reverse onus was, in terms of s 5, a reasonable limit prescribed by law which could be demonstrably justified in a free and democratic society.
[64] As Richardson J said in Ministry of Transport v Noort,[104] the application of s 5 involves weighing:
[104][1992] 3 NZLR 260 at pp 283 – 284 (CA).
(1)the significance in the particular case of the values underlying the Bill of Rights Act;
(2)the importance in the public interest of the intrusion on the particular right protected by the Bill of Rights Act;
(3)the limits sought to be placed on the application of the Act provision in the particular case; and
(4)the effectiveness of the intrusion in protecting the interests put forward to justify those limits.
In deciding what constitutes a justified limitation under s 5, New Zealand courts have commonly adopted the test used by the Supreme Court of Canada in R v Oakes,[105] which was summarised by that Court in the following way in R v Chaulk:[106]
1.The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.
2.Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:
(a) be “rationally connected” to the objective and not be arbitrary, unfair or based on irrational considerations;
(b) impair the right or freedom in question as “little as possible”; and
(c) be such that their effects on the limitation of rights and freedoms are proportional to the objective.
[105][1986] 1 SCR 103.
[106][1990] 3 SCR 1303 at pp 1335 – 1336.
[65] As will be seen, any limitation on a guaranteed right should be accepted as demonstrably justified only after the court has worked through a careful process. In the case of some rights, no limitation could be justified. The overarching rights not to be tortured[107] or tried unfairly,[108] for example, can have no meaningful existence as anything less than absolute protections. By contrast, within the contextually defined concept of fair trial sit some “subsidiary rights” such as that to counsel[109] which, while expressed in unqualified language, may be legitimately qualified in their expression in particular circumstances without undermining the integrity of the criminal justice system. And no one would dispute that many of the freedoms enumerated in Part 2, for example freedom of expression, are in practice routinely limited to a greater or lesser extent by other concerns, both within and external to the Bill of Rights, which are demonstrably justified in a free and democratic society.
[107]Section 9.
[108]Section 25(a).
[109]Section 24(c). See R v Condon [2006] NZSC 62.
[66] It is clear from recent decisions of the House of Lords, in particular R v Johnstone[110] and Sheldrake, that although the presumption of innocence is a fundamental component of the absolute right to a fair trial, a limitation upon it by way of an onus of proof upon a defendant in relation to a specific element of an offence can be a justified limitation where the legislation in question is directed to a legitimate object and in the circumstances is not beyond reasonable limits or arbitrary. In Sheldrake, for example, a provision creating the offence of being in charge of a motor vehicle in a public place while over the permitted alcohol level for drivers stipulated that it was a defence for the accused to prove that at the time he committed the offence the circumstances were such that there was no likelihood of his driving while over the limit. The House of Lords concluded that the provision was directed to a legitimate object, which was the prevention of death, injury and damage caused by unfit drivers. The provision may have infringed the presumption of innocence but it was nevertheless held that the burden it placed on a defendant was not beyond reasonable limits or arbitrary. The likelihood of driving was a matter so closely conditioned by the driver’s own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove beyond reasonable doubt that he would. I accept that there is no direct parallel between the facts of Sheldrake and those in the present case and that it does not provide guidance, save of a very general nature, in other cases. My point is that even the presumption of innocence can in some instances be subject to limitation in response to a compelling social interest.[111] In Sheldrake Lord Bingham described it as supremely important, but not absolute.[112]
[110][2003] 1 WLR 1736.
[111]In Johnstone at para [49] Lord Nicholls remarked that for a reverse burden of proof to be acceptable there must be a compelling reason why it is fair and reasonable to deny the accused person the protection normally guaranteed to everyone by the presumption of innocence.
[112]At para [3].
[67] No-one familiar with life in New Zealand would dispute that the misuse of drugs to which the 1975 Act is directed is a cause of grave social ills and that the trafficking of controlled drugs is an evil. They can cause death and misery for users, who are frequently stimulated to criminal activity under their mind-altering and addictive effects. As is sufficiently well known to be taken into account by a court without evidence on the subject, the production and distribution of certain types of controlled drugs is a major activity of criminal gangs in New Zealand. This country is far from alone in facing the problem. It has long been a world-wide phenomenon. The 1961 United Nations Single Convention on Narcotic Drugs required each state party, subject to its constitutional limitations, to criminalise the cultivation, possession and purchase of such drugs.[113] A later Convention went further, requiring the criminalisation of this behaviour even when all it involved was personal consumption.[114]
Conclusion
[258] The impact of New Zealand’s Bill of Rights on other legislation which is apparently inconsistent with protected rights and freedoms is an important one. The Bill of Rights Act confers a special role on the courts, in relation to ascertaining the meaning of the apparently inconsistent legislative provisions, which serves the statutory purpose which is to “affirm, protect and promote human rights and fundamental freedoms in New Zealand”. The Act does that by modifying the general rule of interpretation that the meaning of an Act of Parliament is to be ascertained from the natural and ordinary meaning of the words used by Parliament, read in their context and in light of the statutory purpose. The modification is to include, as an important supporting indicator of meaning in addition to scheme and purpose, New Zealand’s statutory commitment to human rights and freedoms.
[259] The role of the courts is, however, limited to ascertaining meaning of legislation in accordance with the statutory directions and does not extend to the responsibility that courts assume in jurisdictions where human rights are protected by a supreme law. Nor does the role allow the courts to apply common law powers to effect the implied repeal of legislation or otherwise to disapply or render its provisions ineffective. As a result, it is to be expected that New Zealand courts from time to time will be constitutionally bound, applying s 4 of the Bill of Rights Act, to give effect to legislation which they have concluded is not capable of being read consistently with the Bill of Rights. In such instances it is the constitutional responsibility of the court to indicate in its judgment that it has relied on s 4 of the Bill of Rights Act to uphold an inconsistent provision in another statute. Other branches of government are under no obligation to change the law to remedy the inconsistency, but it may be expected that there will be a reconsideration by them of the inconsistent legislation.
[260] The position I have reached in this judgment is that s 6(6) of the Misuse of Drugs Act 1975 on its ordinary meaning reverses the onus of proof of the mental element of the offence of possession of drugs for the purpose of supply. It imposes a legal burden of proof and not merely a burden of showing that there is evidence raising an element which the Crown must establish concerning the necessary purpose. That other proposed meaning is not a possible meaning of s 6(6) which could be attributed in terms of the principles of interpretation under the Bill of Rights Act. Imposing a legal burden of proof of such an element of the serious criminal offence involved is inconsistent with an accused person’s right to the presumption of innocence and is not a justified limitation of that right. While s 6 of the 1975 Act has been amended since the offending of the appellant, it is by no means clear to me that the changes have removed the inconsistency. The principal difficulties that persons charged will encounter with the provision remain.
[261] The outcome of the present case, however, is clear. The decision of the Court of Appeal, upholding the direction of the trial Judge, was a correct application of s 6(6) of the Misuse of Drugs Act. Accordingly, I would dismiss the appeal.
ANDERSON J
[262] Section 5 of the New Zealand Bill of Rights Act 1990 has two principal functions – defining and protective.
[263] Part 2 of the Bill of Rights Act refers to human rights and fundamental freedoms with varying degrees of qualification. The right not to be deprived of life,[286] for example, is subject to the exception of such grounds as are established by law and are consistent with the principles of fundamental justice. The right to be secure against search or seizure[287] is limited to unreasonable search or seizure. On the other hand, freedom of expression,[288] freedom of association,[289] and freedom of movement[290] are expressed without qualification. Yet those freedoms have never been considered absolute. The laws of defamation, confidentiality, and indecency limit freedom of expression. Freedom of association and of movement are limited by penal provisions, parental authority and family laws. Such limitations are permissible because of s 5. The effect is that although rights and freedoms are identified by Part 2, their scope is or may become defined in particular situations by s 5.
[286]Section 8.
[287]Section 21.
[288]Section 14.
[289]Section 17.
[290]Section 18.
[264] There are some rights and freedoms in respect of which no limitation could be justified in a free and democratic society. Take, for example, the rights affirmed by s 9. What free and democratic society could contemplate as reasonable the infliction of torture or cruel, degrading or disproportionately severe punishment? The right to a fair trial[291] is another example. Whether in a particular case errors of law, or procedural deficiencies or other aberrations, do or do not render the trial unfair is a matter of degree and judgment. But should a trial properly be stigmatised as unfair, s 5 could not be invoked to redeem it. It is also fairly arguable that the burden of persuasion carried by the prosecution in criminal cases is so integral to a fair trial that no relaxation or reversal of it can be justified.
[291]Section 25(a).
[265] The protective function of s 5 operates in two ways. The section reinforces the primacy of the rights and freedoms as defined in Part 2. It also enjoins the legislative, executive and judicial branches of the government of New Zealand, and those charged with public functions, powers or duties, against limiting those rights and freedoms in a way that cannot be demonstrably justified in a free and democratic society.
[266] In my view s 5 does not have an interpretative purpose or effect. That function is served by s 6. There may, however, be situations where, in order to give effect to s 6, consideration needs to be given to s 5. Suppose that on one interpretation an enactment would abrogate a right or freedom, and on another interpretation it would have a limiting but not abrogating effect. If, on the second possibility, the limitation were reasonable, and could be demonstrably justified in a free and democratic society, s 6 would mandate that interpretation.
[267] In some cases that method may involve a finding by a court that Parliament has enacted legislation that cannot be demonstrably justified in a free and democratic society. Although such legislation cannot be struck down, the court’s opinion will have a social value in bringing to notice an enactment which is inconsistent with fundamental rights and freedoms. It is indicative of the strength of our democratic institutions that Parliament, although not countenancing its being overruled, has, by the terms of the Bill of Rights Act, accepted the prospect of judicial assessment of the consistency of its enactments with affirmed rights and freedoms.
[268] It is important to understand that although a court may express what amounts to an advisory opinion, its perspective may be constrained by the limits of its own process and the scope of its inquiry. Its process will have the advantage of legal expertise but, sometimes, the disadvantage of lack of generality. The scope of its inquiry will be constrained by the nature of its judicial process. These limitations may warrant a margin of appreciation in circumstances where they significantly affect the court’s inquiry. For the reasons I have expressed in para [264], it must be recognised that in respect of some rights and freedoms there will be little or no room for marginalisation. In any event, the courts should not be diffident about calling attention to encroachment on fundamental rights and freedoms.
[269] I turn now to the focal point in this appeal. That is, even though s 25(c) of the Bill of Rights Act affirms the right to be presumed innocent until proved guilty according to law, s 6(6) of the Misuse of Drugs Act 1975 requires that if certain evidence is adduced and accepted, then even though it may fall short of proof of an element of the particular crime, the presumption of innocence will be replaced by a presumption of guilt. This is an exception to the general rule that the prosecution bears the legal burden of proving all the elements of an offence, even if this involves proving negative averments. The conventional meaning of s 6(6) of the Misuse of Drugs Act appears to conflict with s 25(c) of the Bill of Rights Act, but will not be in conflict if it is justified in terms of s 5 of the Bill of Rights Act. A method for determining whether a limitation of a right or freedom is demonstrably justified is described in R v Chaulk.[292]
[292] [1990] 3 SCR 1303.
[270] Although I am substantially in agreement with the test summarised in Chaulk, I have some difficulty with the idea that there should be a preliminary
inquiry as to whether the objective of the impugned provision is of sufficient importance to warrant overriding a constitutionally protected right or freedom. That envisages that some objectives may warrant overriding a constitutionally protected right or freedom irrespective of any consideration of the means of achieving the objective. I think that deciding, abstractly, that a limitation is justified, before examining the means employed in doing so, risks colouring the evaluation of those means. The essential question in any particular case is whether the limitation is demonstrably justified, not whether some limitation is justified.
[271] It is not possible to formulate a workable methodology with less abstraction and more detail than I suggest in the next paragraph because the terms of s 5 of the Bill of Rights Act are themselves quite abstract. Moreover, the norms of a free and democratic society will develop and the test must be applicable to changing circumstances. The generality of the terms of the method will accommodate different emphases, viewpoints or evaluations in the course of application. That is apparent from the differences in the various reasons for judgment here. It does not, however, detract from the importance of the core considerations. It is not helpful, in my view, to refer independently to arbitrariness, unfairness, or not being based on irrational considerations. All of those defects are comprehended by the references to rational connection and proportionate response. Further, it is clear from the terms of s 5 of the Bill of Rights Act that only very important concerns could justify any limitation of a right or freedom.
[272] I think the form of the test summarised in Chaulk could be refined without diminution of its core elements, which I accept. I would recast it as follows:
A limitation of an affirmed right or freedom will not be demonstrably justified in a free and democratic society unless it:
(a)relates to concerns which are pressing and substantial in a free and democratic society; and
(b) is rationally connected to its intended purpose; and
(c)in light of its intended purpose is the least possible impairment; and
(d)is a proportional response to the concerns.
[273] In this case, the pressing and substantial concern is the widespread and destructive use of and dealing in controlled drugs. The health, safety and economic implications are of a degree which needs no elaboration. Limiting such use and its effects, including by criminal process, is an important social objective. However, it is not only criminal dealing in drugs which is of great social concern. Sexual abuse and other forms of serious violence, even when not drug related, are also matters of grave concern, yet our society does not and should not contemplate reversing the onus of proof in those types of case. In my view, the misuse of drugs is no more important than those types of criminality.
[274] The purpose of a presumption like the one in issue is to dispense with proof of a necessary element of an offence if there is evidence consistent with that element but not sufficiently indicative of it. A justification often advanced for such expediency is that the element is, in practice, difficult to prove. However in any type of case there may be difficulty in proving an allegation, for a number of reasons, including of course that the allegation is false. In a case such as the present the perceived difficulty is that the purpose of possession is usually ascertainable only by inference, and the conduct of concern is criminal activity in which clues to purpose or intent will be covert and elusive. But proof of mental state is almost invariably a matter of inference whatever the crime, and many types of criminal activity are hidden. Yet in those cases society adheres to the principle that the prosecution carries the burden of proving every element of a crime beyond any reasonable doubt. I see no justification for the proposition which seems to underpin s 6(6) of the Misuse of Drugs Act, namely that because it is difficult for the prosecution to prove an element of a crime it does not have to. That is an unprincipled expedient.
[275] I am not satisfied that the limitation in this case is rationally connected to its intended purpose, which is to facilitate the conviction of drug dealers. It creates a presumption based on quantities and is explicable therefore on the basis that an inference as to purpose can be drawn from possession of certain quantities. Yet, as Blanchard J appears to acknowledge in his reasons, the presumption is most telling in cases where the quantity possessed may not give rise to the necessary inference. The presumption cuts deepest when the evidence is the most equivocal.
[276] It is the case that part of the process for altering or fixing trigger quantities involves the Minister of Health connecting with and taking advice from an Expert Advisory Committee on Drugs about the amounts, level or quantity at and over which a controlled drug might be presumed for supply. In this respect the Expert Committee may, but is not specifically required to, give advice on the following matters:[293]
(a) the amount of the drug that could reasonably be possessed for personal use, including, without limitation, levels of consumption, the ability of the drug to create physical or psychological dependence, and the specific effects of the drug; and
(b) the amount, level, or quantity at and over which the drug is presumed to be for supply in other jurisdictions; and
(c) any other matters that the Minister considers relevant.
[293]Section 4B(4) of the Misuse of Drugs Act 1975.
[277] But the presumption in s 6(6) of the Misuse of Drugs Act is not expressed in terms of how much of a controlled drug could reasonably be possessed for personal use, still less the maximum amount that could reasonably be possessed for personal use; the presumption is, rather, that possession of more than a specified amount is sufficient proof of a selling or supplying purpose. The amount, level, or quantity raising a presumption of a supplying purpose in other jurisdictions indicates policies in those jurisdictions, not indigenous patterns of drug related behaviour. There is insufficient correlation between the Expert Committee’s advice and the purpose of the limitation upon s 25(c) of the Bill of Rights Act to invest the presumption with rationality.
[278] The rationale of s 6(6) seems to be that by virtue of the opinion of the Expert Committee as to how much of a controlled drug could reasonably be possessed for personal use, possession of more than the trigger quantity raises a logical inference as to purpose. In the preceding paragraph I question the rationality of that
proposition. But if the opinion could support a logical inference of purpose, the opinion should be presented to a court as such, and not as a proved fact. Moreover, no expert opinion will be immune to challenge by another body of experts but s 6(6) precludes any logical or scientific challenge.
[279] The trigger level is fixed in light of the opinion of the Expert Committee, indicating that the opinion is factual information from which, as a generalisation, a purpose may be inferred. If that is so, the quality of the opinion is essentially evidential, not probative. Its evidential value will vary according to the whole of the factual context. To the extent that an opinion has evidential relevance it could properly be put before a court, but the presumption goes further than that. I acknowledge that there are significant issues of cost, convenience, and practicability in putting before a court the opinion of an expert body, but they could be ameliorated by legislation permitting the opinion to be produced as such. It is not uncommon in misuse of drugs prosecutions for expert evidence to be given by an experienced member of the Police, familiar with the patterns of conduct of drug dealers. Such a witness could outline to a court the status and membership of the Expert Committee and produce its opinion. That opinion could be examined and challenged by defence witnesses, like any other expert opinion presented to a court. The prosecution might find itself at a disadvantage if it elected to rely on a written opinion rather than an expert’s oral testimony. Whether and to what extent that would be so will vary from case to case and tactical decisions will no doubt be made accordingly. What is clear however, to my mind, is that the more compelling the inference to be taken in light of the expert opinion, the less there is a need for a presumption, and the less compelling the inference, the less there is a justification for a presumption. In view of these various matters I consider that s 6(6) of the Misuse of Drugs Act goes further than is reasonably necessary to curb crimes of drug dealing.
[280] Finally, I consider that the presumption is not a proportional response to the concerns about misuse of drugs. It is not necessarily effective in curbing drug dealing at street level. A dealer need only ensure possession of a drug or drugs just below the relevant trigger level to make the presumption irrelevant. But more importantly, it must impact most in cases of marginal likelihood in terms of amounts and carries a risk, which I consider unacceptable, of convicting persons who do not in fact have a dealing purpose. Because of prosecutorial difficulty in proving a positive, an accused who does not have equality of arms in terms of resources, and may lack articulateness, is forced to carry the even heavier burden of proving a negative. That such negative is subjective and intangible only exacerbates the difficulty for an accused.
[281] In short, I am of the view that the apparent meaning of the statute is not a justified limitation of the right identified in s 25(c) of the Bill of Rights Act. But counsel for the appellant has submitted that s 6(6) can reasonably be interpreted in a way which envisages the presumption being rebutted by an accused adducing or pointing to evidence which makes the purpose of possession a live issue.
[282] Counsel for the appellant argued that “proved” should be accorded the meaning “tested”. In consequence of that, the presumption would be rebutted if an accused adduced or pointed to some evidence which, if accepted, might create a reasonable doubt. It is the case that the meaning of “prove” first signified by the Shorter Oxford English Dictionary[294] is:
[294](5th ed, 2002).
Test the genuineness or qualities of, subject to a testing process.
However, context is an essential indication when a word is as diverse in its meanings and connotations as “prove”. Amongst the meanings catalogued in that dictionary is:
Establish or demonstrate the truth or existence of by evidence or argument.
Given the forensic context of s 6(6) I consider that to be the appropriate meaning. I note also that the only meaning of “prove” given in Black’s Law Dictionary[295] is:
To establish or make certain; to establish the truth of (a fact or hypothesis) by satisfactory evidence.
[295](8th ed, 2004).
[283] The present appellant’s argument was advanced in R v Phillips.[296] In delivering the judgment of the Court of Appeal Cooke P noted:[297]
It is said that the expression “until the contrary is proved” could be taken to mean until some evidential foundation sufficient to create a reasonable doubt appears: that it could be interpreted in such a way as to cast on the defence, not the burden of proving anything in the sense of obtaining a finding of fact, but merely an evidential onus of tendering or pointing to some evidence which, if accepted, might create a reasonable doubt.
[296][1991] 3 NZLR 175.
[297]At pp 176 – 177.
[284] That argument was supported by reference to an article by Professor Glanville Williams[298] but the Court of Appeal was not persuaded. Cooke P said:[299]
With the utmost respect to [Professor Glanville Williams], we are not persuaded that the ordinary and natural meaning of the word “proof” or “proved” is capable of extending so far. To suggest that s 6(6) of the Misuse of Drugs Act can be read in the sense contended for is, in our view, a strained and unnatural interpretation which, even with the aid of the New Zealand Bill of Rights Act, this Court would not be justified in adopting.
[298]“The Logic of ‘Exceptions’” [1988] 47(2) CLJ 261.
[299]At p 177.
[285] A similar argument was considered by Lord Cooke of Thorndon, sitting in the House of Lords on the appeal R v Director of Public Prosecutions, ex p Kebilene.[300] The case concerned the prosecution of Kebilene and others pursuant to s 16A(1) of the Prevention of Terrorism (Temporary Provisions) Act 1989 (UK). That created an offence of having possession of any article “in circumstances giving rise to a reasonable suspicion” that the article is possessed for a purpose connected with the commission, preparation or instigation of specified acts of terrorism. Subsection (3) provided that it is a defence for a person charged with an offence under the section to prove that at the time of the alleged possession the article was not in possession for any such purpose. Thus, an accused could be convicted on the strength of suspicion; the spirit of Woolmington,[301] art 6(2) of the European Convention on Human Rights[302] and art 14(2) of the International Covenant on Civil and Political Rights[303] notwithstanding. On the question whether, upon s 3(1) of the Human Rights Act 1998 (UK) coming into effect, s 16A(3) could be read as casting only an evidential burden on an accused, their Lordships, including Lord Cooke of Thorndon, were minded to think that an accused could displace the presumption by raising a reasonable doubt as to guilt.
[300][2000] 2 AC 326.
[301]Woolmington v Director of Public Prosecutions [1935] AC 462.
[302]Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 UNTS 221.
[303](1966) 999 UNTS 171.
[286] In R v Lambert[304] the House of Lords considered the appeal of a man convicted of possession of cocaine for supply, contrary to s 5 of the Misuse of Drugs Act 1971 (UK). The drug was in a duffel bag carried by the accused. A presumption as to possession could be displaced, pursuant to s 28, if the accused should prove that he neither believed, nor suspected, nor had reason to suspect that a substance in his possession was a controlled drug. At issue was whether a statutory reservation required him to satisfy the jury of those exceptions on the balance of probabilities, or whether it imposed only an evidential burden. The House of Lords held that although, on its ordinary meaning, s 28 imposed a legal burden upon an accused, it should be read as imposing only an evidential burden in cases where an accused is entitled to rely on art 6(2) of the Convention. Their Lordships came to that result because they regarded it as “possible to do so”,[305] drawing support from Professor Glanville Williams’ article and also from the speech of Lord Cooke of Thorndon in Kebilene,[306] which included the following:
I agree that such is not the natural and ordinary meaning of section 16A(3). Yet for evidence that it is a possible meaning one could hardly ask for more than the opinion of Professor Glanville Williams in “The Logic of ‘Exceptions’” [1988] C.L.J. 261, 265 that “unless the contrary is proved” can be taken, in relation to a defence, to mean “unless sufficient evidence is given to the contrary;” and that the statute may then be satisfied by “evidence that, if believed, and on the most favourable view, could be taken by a reasonable jury to support the defence.”
I must not conceal that in New Zealand the Glanville Williams approach was not allowed to prevail in Reg. v Phillips [1991] 3 NZLR 175. But, quite apart from the fact that the decision is of course not authoritative in England, section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message.
[304][2002] 2 AC 545.
[305]Lord Slynn of Hedley at para [17]; Lord Steyn at para [42]; Lord Hope of Craighead at para [84]; Lord Clyde at para [157].
[306]At pp 373 – 374.
[287] I find it difficult, however, to distinguish between s 3(1) of the Human Rights Act (UK) and s 6 of the Bill of Rights Act, whether in terms of essential meaning or in terms of relative potency. In the New Zealand statute “can” is used as an ancillary verb expressing a possibility;[307] and “shall” and “must” are equally mandatory. Lord Cooke of Thorndon did not suggest that the meaning attributed by the Court of Appeal in Phillips should be revised. Further, if the English position is distinguishable that does not assist the present appellant.
[307]Shorter Oxford English Dictionary (5th ed, 2002): “May possibly; be enabled by circumstances etc.”
[288] The argument on behalf of the appellant is untenable. If in s 6(6) of the Misuse of Drugs Act “tested” were substituted for “proved”, the subsection would read:
a person shall until the contrary is tested be deemed …
But if there were only an evidential burden, it would be the deeming, not the contrary, which would be tested. Further, if a prosecution would fail because the defence were able to lead or point to evidence raising a reasonable doubt, the deeming provision would be unnecessary. Whether it existed or not, the prosecution would have to prove every element, including the proscribed purpose, beyond reasonable doubt.
[289] The terms of the 2005 amendment suggest, for the reasons given by Blanchard J, that at one level, the meaning to be attributed to s 6(6) should be that affirmed in Phillips. However, the Bill of Rights Act now adumbrates the application of previously conventional principles of construction and may result in the finding of a meaning different from that which would have been found prior to the Bill of Rights Act. Now, a meaning dictated by s 6, rather than a meaning ascertained without reference to s 6, is what the courts must find if it is reasonably possible to do so.
[290] But the duty of the courts is to construe, not to reconstruct. In my view no other meaning than that decided in Phillips is reasonably possible. The meaning suggested on behalf of the appellant is as strained and unnatural now as it was found to be then. Accordingly s 6 of the Bill of Rights Act is not engaged. Even though s 6(6) of the Misuse of Drugs Act is inconsistent with the right to be presumed innocent until proved guilty according to law, and is not redeemed by s 5 of the Bill of Rights Act, s 4 of that Act requires that the appeal be dismissed.
Solicitors:
Queenstown Legal Chambers for Appellant
Crown Law Office, Wellington
In other words, if the Crown gets to that point, the case is proved. There does not have to be any evidence of actual sales or of an actual intention to sell in the future.
But, and this is the twist, because the presumption may work unfairly, the accused is given the opportunity to rebut the presumption – to persuade you that he or she had the drugs for some purpose other than to sell them to others.
In considering the defence evidence about that, two principal things need to be kept in mind:
(1)He must persuade you that all of the drugs were for his own use. If you think that only some of them were for his own use, that will not be good enough.
(2)The standard of proof required of an accused person is not as high as that imposed on the Crown. The standard required of an accused is what is known as the balance of probabilities. He has to satisfy you that it is more probable than not that he had all of the drugs for his own use.
(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2)This section –
(a) applies to primary legislation and subordinate legislation whenever enacted;
(b) does not affect the validity, continuing operation or enforcement of any incompatible primary legislation; and
(c) does not affect the validity, continuing operation or enforcement of any incompatible subordinate legislation if (disregarding any possibility of revocation) primary legislation prevents removal of the incompatibility.
As s 3 of the Human Rights Act 1998 (UK) was described by Lord Bingham in Sheldrake at
para [28].
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