Statutory Presumption Flashcards
STATUTORY PRESUMPTION
Under section 6(6) people in possession of controlled drugs over certain specified amounts are considered to have possession of those drugs for the purpose of supply, unless they can prove otherwise.
The effect of the statutory presumption is to reverse the onus of proof – it is up to the defendant to prove on the balance of probabilities that the drugs were not intended for supply.
The controlled drugs and specified amounts are listed in Schedule 5 to the Act.
Some examples of drugs and their presumptive amounts are: * Heroin 0.5 grams * Cocaine 0.5 grams * Lysergide (LSD) 2.5 milligrams or 25 flakes, tablets etc * Methamphetamine 5 grams * MDMA (Ecstasy) 5 grams or 100 flakes, tablets etc * Cannabis resin 5 grams * Cannabis extract (oil) 5 grams * Cannabis plant 28 grams or 100 or more cigarettes
Where a controlled drug is not specified in Schedule 5 the presumptive amount for that drug is 56 grams.
EFFECT OF APPLICATION OF THE PRESUMPTIONS
The “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 of the Misuse of Drugs Act 1975.
If a person is found to have at least the amount, level or quantity of a controlled drug provided for in schedule 5 in his or her possession, a court is entitled to presume that the drug was possessed for the purpose of sale or supply. The onus of rebutting that presumption lies on the defendant, to the standard of the balance of probabilities.
It is important to bear in mind the words of the schedule. References to a drug being contained in a substance, preparation or mixture relate to common situations where the drug itself is combined with other substances, thereby diluting the purity of the substance. For example, the level at which the presumption applies to methamphetamine, applies to quantities “whether or not contained in a substance, preparation or mixture”. That means, it is the quantity of pure methamphetamine that matters.
THE STATUTORY PRESUMPTION AS AN INVESTIGATIVE TOOL
Although the statutory presumption is a valuable tool, it is only one tool in a range of investigative options, and should not be relied on alone. A thorough investigation should always be conducted to obtain supporting evidence of intent, including, where possible, admissions, packaging, scales, tick lists and other circumstantial evidence.
Likewise, intent to supply can still be proved circumstantially or by admissions where the quantity of drugs located is below the level of presumption, even when those quantities are comparatively small.
Conspiracy
There is a specific offence under the Misuse of Drugs Act for Conspiracy when the conspiracy is to commit an offence against S6 of the Act.
(2A) Every person who conspires with any other person to commit an offence against subsection (1) of this section commits an offence against this Act and is liable on conviction on indictment to imprisonment for a term (a) Not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed: (b) Not exceeding 10 years where paragraph (a) of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed: (c) Not exceeding 7 years in any other case.
“Conspiracy”
A conspiracy is an agreement between two or more people to commit an offence.
In the case of section 6(2A) the offence involved is one against section 6(1) of the Misuse of Drugs Act 1975.
