Review of the Police Powers (Drug Premises) Act 2001 - NSW ...

• the offence of being found on, entering, or leaving drug premises 435 and
• the offence of organising drug premises. 436
The onus of proof relates to who is required to prove an offence. In most instances in the criminal law, the onus of proof is on the
prosecution, and guilt must be proven beyond reasonable doubt. That the defence is not required to prove innocence reflects what
is usually regarded as a fundamental principle of the criminal law - that a person is innocent until proven guilty. If the onus of proof is
reversed, the accused is required to prove their innocence. The standard to which this must be proved, however, is on the balance of
probabilities, rather than the higher threshold of beyond reasonable doubt.
Concerns were expressed about the reversal of the onus of proof in submissions to our discussion paper and in the course of
parliamentary debate about the Drug Premises Act. In a submission to our discussion paper, the Legal Aid Commission of NSW
expressed opposition to the reversal of the onus of proof in any legislative context, and had particular concerns about how it may impact
upon vulnerable groups in the community charged under the Drug Premises Act:
The reversal also means significant difficulties for those who are uneducated, inarticulate, have intellectual or physical disabilities,
or indeed may have drug addiction problems. The Commission regularly experiences difficulties with those people where they may
be charged with an offence such as goods in custody, which has similar provisions. In many cases, it is simply impossible for the
clients to be able to give an adequate account of themselves due to their disabilities. 437
In the Commission’s view, the potential for injustice in this sort of situation is significant and “the social benefit is far outweighed by the
potential detriment that may be suffered in such situations”. 438 One health education officer from Cabramatta observed that the people
who had been charged under the Drug Premises Act, in the experience of the officer, were “often illiterate or not articulate”. 439
Another submission to our discussion paper, received from Family Drug Support, 440 expressed a general concern about reversing the
onus of proof, stating that it is in “direct contradiction of the normal operation of justice in Australia and causes great concern for personal
rights and civil liberties”. 441 The North and North West Legal Service also expressed a general concern that the reversal of the onus of
proof may leave the community open to a “misuse of these powers”. 442 The Legal Service submission stated that the reversed burden of
proof may “result in the accused being forced to give evidence that may be self incriminating”. 443
Particular concerns have also been expressed in submissions to our discussion paper and in other forums that the reversal of the onus
of proof means that the credibility of the accused “is on trial”. 444 In a submission to Parliament prepared by the Law Society when the Act
was being debated, concern was expressed that the court’s assessment of the accused knowledge or intent in regard to why they said
they were on drug premises would be based solely on an assessment of the person’s credibility. The Law Society argued that:
The ability of one person to assess another’s credibility is hardly a precise science. For example, nervous witnesses can easily
create an impression that they have something to hide. 445
The North and North West Legal Service expressed a similar concern in their submission to our discussion paper, stating that where
“knowledge of a crime is at issue the accused credibility will also be on trial”. 446 The Legal Service also believed that an alien and
threatening court environment could impact on making a subjective determination about the credibility of defendants. 447
435 Police Powers (Drug Premises) Act, s. 12.
436 Police Powers (Drug Premises) Act, s. 14.
437 Submission, NSW Legal Aid Commission, 30 July 2003.
438 Ibid.
439 Submission, Health Education Officer, Cabramatta, July 30 2003.
440 Family Drug Support “assists families to deal with drug issues in a way that strengthens relationships and achieves positive outcomes”. Mission
Statement, Insight Family Drug Support Information Booklet, p. 1.
441 Submission, Family Drug Support, 31 July 2003.
442 Submission, North and North West Community Legal Service, 1 August 2003.
443 Ibid.
444 Ibid.
445 Law Society Submission, quoted by the Hon. I. Cohen, NSWPD, 7 June 2001, p. 14636.
446 Submission, North and North West Community Legal Centre, 1 August 2003.
447 Ibid.
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 83