Presumption of supply in New Zealand

The presumption of supply is a rebuttable presumption contained in criminal law and is governed by the New Zealand Misuse of Drugs Act 1975. It provides an assumption in drug possession offences that when a person is found with more than a specified amount of a controlled drug, they are in possession of it for the purpose of supply or sale. This shifts the burden of proof from the Crown to the person found with the drug to prove that it was for personal use and not intended for supply. While this exists in order to ease difficulties related to prosecution,^[1] in 2007 the Supreme Court held that the presumption of supply is inconsistent with section 25(c) of the New Zealand Bill of Rights Act 1990.^[2]

History

While drug regulation began in New Zealand with the regulation of opium in the late 19th century, it was not until 1965 that the offence of supply was differentiated from that of possession. The offence is currently contained in the Misuse of Drugs Act 1975.

Single Convention on Narcotic Drugs 1961

In the 1960s the United Nations consolidated and broadened all earlier drug treaties. The Single Convention on Narcotic Drugs 1961 came into force in 1964 after 40 countries, including New Zealand, acceded to it.^[3] The treaty was significantly influenced by the United States prohibitionist approach to drug policy and regulation^[4] and was ratified by New Zealand in 1963. In the Commentary to this Convention, the United Nations General Assembly endorsed the use of presumptions.^[5]

Narcotics Act 1965

New Zealand domestically implemented the 1961 Convention in the Narcotics Act 1965 which, despite the term "narcotics," also covered various other psychomotor stimulants such as cocaine and cannabis.^[6] Later, hallucinogens such as LSD, mescalin and peyote were also covered. The Narcotics Act introduced a distinction between those offenders who dealt in narcotics and those who possess or use them, with the penalties for dealing much more significant than simple possession or use. In support of this the Act introduced a presumption of possession for the purposes of supply. Where a person was found in possession of an amount of a scheduled drug that exceeded the specified level, the burden of proof shifted to the accused person to prove that the drugs were for personal use and not for supply to others.^[7] If the person could not discharge this burden, they could be convicted of the more serious offence of dealing in narcotics.

United Nations Convention on Psychotropic Substances 1971

The Blake-Palmer Committee was established in 1968 and tasked with undertaking a comprehensive review of the issues of drug prevalence in New Zealand and forming recommendations to that effect. At the international level, the United Nations Convention on Psychotropic Substances 1971 was created to deal with the emergence of substances not covered by the 1961 Convention, and in the final Blake-Palmer Committee report released in 1973 it was recommended that New Zealand create a new Act in order to reclassify, update and consolidate New Zealand’s drug law and to implement New Zealand’s expanded international obligations under the 1971 Convention.^[8] This gave rise to the Misuse of Drugs Act 1975.^[9]

Misuse of Drugs Act 1975

The Misuse of Drugs Act 1975 was enacted on 10 October 1975 and into force on 1 June 1977. The Act implemented the recommendations of the Blake-Palmer Committee for a harm-based classification system for drugs. As proposed by the Committee, the Act also updated and consolidated the law controlling the use and misuse of drugs and addressed New Zealand’s expanded international obligations.^[10] The Act places emphasis on deterrent penalties for offences that involve “dealing” in drugs. Dealing is importing, exporting, producing, manufacturing, selling or otherwise supplying or administering a controlled drug to another person, and includes the possession of a controlled drug for one of these purposes.^[11]

The Misuse of Drugs Act continued the policy introduced in the Narcotics Act by setting a presumption of supply. Section 6(6) of the Act creates a presumption that where a person is found in possession of a quantity of a controlled drug equivalent to or exceeding the amount specified in the Schedule of the Act,^[12] that they possess the drug for the purpose of supplying it to others. The legal burden of proof then shifts to the accused person to prove on the balance of probabilities that he or she was not supplying the drug and that the drug was intended for personal use.^[13] This reverses the onus of proof and is controversial^[14] due to its inconsistencies with the New Zealand Bill of Rights Act 1990 which provides that every person is presumed innocent until proven guilty.^[15]

A number of issues with the Act have emerged over the 30 years since its enactment and it is questionable whether it now provides a coherent or effective legislative framework.^[16] It has also been questioned whether the existing statutory presumption of possession for supply should continue to apply following the Supreme Court’s decision in the 2007 Hansen case.^[17]

Application

Bill of Rights Act 1990

The New Zealand Bill of Rights Act is a New Zealand statute which sets out the rights and fundamental freedoms of anyone subject to New Zealand law as a Bill of Rights and is part of New Zealand's uncodified constitution. The Act gives general legislative force to the protection of fundamental rights and freedoms in New Zealand society, but that protection is not absolute.^[18] When another Act is prima facie found to be inconsistent with a right or freedom contained within the Bill of Rights the starting point for the application of the Act is to examine that meaning against the relevant guaranteed right – in this case, section 25(c) – to see if it curtails the right so as to engage the Bill of Rights’ interpretive provisions (sections 4, 5 and 6).

Presumption of innocence - Section 25(c)

Section 25(c) of the Bill of Rights Act 1990 affirms the right of everyone charged with an offence to be presumed innocent until proved guilty according to law.^[15] It establishes that the burden of proof of guilt in criminal cases is carried by the prosecution who must prove an accused's guilt beyond reasonable doubt. It is a widely acknowledged common law rule that the prosecution must prove guilt even where an affirmative defence is put forward.^[19] A provision requiring an accused person to disprove on the balance of probabilities the existence of a presumed fact, with that fact being an important element of the offence in question - e.g. a presumption of supply, will generally violate the presumption of innocence contained in section 25(c).^[20]

Section 4

Section 4 specifically denies the Act any supremacy over other legislation. It provides that courts looking at cases under the Act cannot implicitly repeal or revoke, or make invalid or ineffective, or decline to apply any provision of any statute made by Parliament, whether before or after the Act was passed because it is inconsistent with any provision of the Bill of Rights. Where there is an inconsistency between the Bill of Rights Act and another Act, this cannot be said to be a justified limitation contained in section 5, or interpreted consistently with the Bill of Rights Act per section 6, then the other Act prevails.

Section 5

Section 5 provides that where a Bill is found to be prima facie inconsistent with a particular right or freedom, it may nevertheless be found to be consistent with the Bill of Rights Act if the inconsistency is considered to be a justified limitation. The application of section 5 is two-fold; the courts must look at whether the provision serves an important and significant objective; and, is there a rational and proportionate connection between that objective and the provision?^[17]

Case law in foreign jurisdictions suggests that the supply of illicit drugs is a pressing social objective that might, in certain circumstances, justify limitations on the presumption of innocence.^[20][21] This was accepted in New Zealand by the Supreme Court in the leading case of R v Hansen,^[2] however the majority of the Court found that the reverse onus of the presumption of supply contained in section 6(6) of the Misuse of Drugs Act 1975^[22] was either not rationally connected to the objective or was a disproportionate response to the problem.^[17]

Section 6

Section 6 states that wherever an Act can be given a meaning that is consistent with the rights and freedoms contained in the Bill of Rights, that meaning shall be preferred to any other meaning.^[23] This was the basis of the appeal in R v Hansen.

R v Hansen (2007)

The leading New Zealand case on the presumption of supply is R v Hansen, where the appellant was charged with possession of cannabis for the purpose of supply.^[2] Hansen maintained 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 section 25(c) of the New Zealand Bill of Rights Act 1990 to be presumed innocent until proven guilty. He argued that section 6 of the New Zealand Bill of Rights Act required section 6(6) of the Misuse of Drugs Act to be given a meaning consistent with the presumption of innocence in section 25(c).^[24]

Hansen contended that consistency with the right to be presumed innocent would be achieved if section 6(6) of the Misuse of Drugs Act was construed to impose only an evidential burden of having to call or identify some evidence which, if accepted by the jury, might create a reasonable doubt as to his purpose, rather than the legal burden which must be proved on the balance of probabilities.^[25] This leaves the legal onus on the Crown to satisfy the jury beyond reasonable doubt that the appellant had such purpose.

The majority of the Court found that either the reverse onus contained in section 6(6) of the Act was not rationally connected to the objective or that it was not a proportionate response to the problem, putting the Act in breach of section 25(c). As such they had to revert to section 4 of the Bill of Rights Act 1990 and allow the Misuse of Drugs Act 1975 to prevail in placing a legal burden on the accused.

Criticism and reform

In the Hansen decision, several of the judgments lamented the fact that the courts are constitutionally bound, when applying section 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.^[26][27][28]

Law Commission Report 2011

The New Zealand Law Commission's 2011 report on controlling and regulating drugs contains several criticisms of the Misuse of Drugs Act 1975. In considering how to best address the problems of proof that the presumption of supply seeks to remedy, while still respecting the fundamental protection conferred by section 25(c), the Commission has proposed the removal of the offence of possession for supply entirely in favour of simply an offence of possession.^[29]

In light of the recommendations in the report, in September 2011 the Government issued a Regulatory Impact Statement as a response. While several recommendations were implemented, it was found that greater clarity on the impact of the costs and resources was required to determine the full effects of a new Act and drug classification system, including the presumption of supply.^[30]

References

External links

• The New Zealand Bill of Rights Act 1990
• The Misuse of Drugs Act 1975
• Law Commission Report 2011: Controlling and Regulating Drugs - a review of the Misuse of Drugs Act 1975
• Government Response to the Law Commission’s Report “Controlling and Regulating Drugs – a review of the Misuse of Drugs Act 1975”