Published date01 July 2007
Date01 July 2007
Subject MatterNoticeboard
Reverse-onus burden of proof—New Zealand
Legislation in common law jurisdictions directed against drug trafficking
sometimes contains reverse-onus provisions making proof of dealing by the prose-
cution unnecessary (see, e.g., Senate Special Committee on Illegal Drugs, Cannabis,
Our Position for a Canadian Public Policy, vol. II, part III (September 2002) 262). Section
6(6) of the Misuse of Drugs Act 1975 (NZ) is an example. It states that if the accused
has in his possession more of a controlled drug than the specified level, he is
‘deemed’ (pre-2005) or ‘presumed’ (post-2005) to possess it for the purpose of sale
or supply ‘until the contrary is proved’. In Hansen vR[2007] NZSC 7 the appellant
contended, contrary to the long-standing view of the New Zealand courts, that
proving the contrary means raising a reasonable doubt that the purpose of
possession was for supply. On this theory, once the defendant makes his purpose a
triable issue, the burden of proving a dealing purpose falls on the Crown in the
normal way. In favour of this interpretation, counsel argued that:
it was possible to interpret s. 6(6) this way by construing the word
‘proved’ to mean ‘tested’ in the sense of creating a reasonable doubt (cp.
G. Williams, ‘The Logic of “Exceptions”’ (1988) 47 CLJ 261);
it was necessary to do so because (i) the existing interpretation of s. 6(6)
was inconsistent with the right to be presumed innocent until proven
guilty which s. 25(c) of the Bill of Rights Act 1990 affirms (cp. RvLambert
[2002] 2 AC 545) and (ii) s. 6 of the Bill of Rights Act requires courts to
interpret other legislation consistently with protected rights wherever
the statutory language allows.
The Supreme Court unanimously held that the only tenable interpretation of
‘until the contrary is proved’ in s. 6(6) is that it places a legal burden on the accused
to prove on the balance of probabilities that his possession was for a purpose other
than sale or supply. This was so even after applying the interpretative direction
found in s. 6 of the Bill of Rights Act 1990.
The terms of s. 6(6) would be redundant if they were construed to
mean that the accused had to raise only a reasonable doubt; the more
so if the accused could do so without an evidentiary foundation.
([2007] NZSC 7 at [95], per Tipping J)
It is simply not reasonably possible for the word ‘prove’, in its present
context, to mean anything less than establish the existence of a fact to
a defined standard of satisfaction [a]nd …. that level cannot logically
fall below the balance of probabilities. ([2007] NZSC 7 at [165])
It follows that a jury that has a reasonable doubt about whether possession was for
the purpose of sale or for personal use may nevertheless convict. This makes s. 6(6)
prima facie inconsistent with the presumption of innocence since the presumption
requires the Crown to prove all aspects of culpability beyond reasonable doubt.
The presumption of innocence is a recognised right in international law. It is
guaranteed by Article 14(2) of the International Covenant on Civil and Political
Rights and Article 6(2) of the European Convention on Human Rights (ECHR). The
factors responsible for its importance were summarised by McGrath J:
The first is the seriousness of the consequences for any person who is
convicted of a criminal offence … Secondly, the presumption of
innocence has important effects on criminal procedure which reduce
the risk of factual error in a criminal trial resulting in a wrongful
conviction. ... A third factor is that the presumption of innocence
helps command the confidence of the general public in the integrity
of the administration of the criminal law. The public are confident
that innocent people are not convicted, because guilt of criminal
charges is determined by independent courts which apply the
standard of proof beyond reasonable doubt. Finally, the presumption
of innocence is recognised by the community to be a form of constitu-
tional protection of the citizen which balances the interests of
persons charged against the power and resources of the State as the
prosecutor of charges of criminal offending. ([2007] NZSC 7 at
Although it is a core value of the criminal justice system, the presumption of
innocence may be limited in response to a compelling social interest (contra Elias
CJ [2007] NZSC 7 at [7], [35]–[38] who considered that ‘[a]ny restriction denies the
right’; Anderson J was inclined to agree ibid. at [264]). Section 5 of the Bill of Rights
Act 1990 stipulates that limitation of a protected right must be prescribed by law,
222 E & P

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