Application Presumption of supply in New Zealand

1 application

1.1 bill of rights act 1990

1.1.1 presumption of innocence: section 25(c)
1.1.2 section 4
1.1.3 section 5
1.1.4 section 6


1.2 r v hansen (2007)

application
bill of rights act 1990

the new zealand bill of rights act 1990 sets out rights , freedoms of subject new zealand law, , part of country s uncodified constitution. act protects fundamental rights , freedoms in new zealand society in general, rather absolute, sense. when act prima facie inconsistent right or freedom contained in bill of rights, starting point act s application examine meaning against guaranteed right see if right curtailed. if so, bill of rights interpretive provisions (sections 4, 5 , 6) engaged.

presumption of innocence: section 25(c)

section 25(c) of bill of rights act 1990 affirms right of charged offence presumed innocent until proven guilty according law. establishes burden of proof of guilt in criminal cases carried prosecutor, must prove accused s guilt beyond reasonable doubt. widely-acknowledged common law prosecution must prove guilt when affirmative defence argued. provision requiring accused person disprove existence of presumed fact, fact being important element of offence in question (e.g. presumption of supply) violates presumption of innocence in section 25(c).

section 4

section 4 specifies bill of rights act not supreme law. provides courts hearing cases under act cannot repeal or revoke, make invalid or ineffective, or decline apply provision of statute made parliament because inconsistent provision in bill of rights act. case whether statute passed before or after bill of rights act. statute prevail if inconsistent bill of rights act , cannot said justified limitation under section 5 or interpreted consistently bill of rights act under section 6.

section 5

section 5 provides if legislation found prima facie inconsistent particular right or freedom, may consistent bill of rights act if inconsistency justified limitation. application of section 5 two-fold; courts must @ whether provision serves important , significant objective, , if there rational , proportionate connection between objective , provision.

case law in overseas jurisdictions suggests restricting supply of illicit drugs pressing social objective might, in circumstances, justify limitations on presumption of innocence. accepted in new zealand supreme court in leading case of r v hansen; however, majority of court found reverse onus of presumption of supply contained in section 6(6) of misuse of drugs act 1975 unconnected objective or disproportionate response problem.

section 6

section 6 states act can given meaning consistent rights , freedoms contained in bill of rights, meaning shall preferred other; basis of appeal in r v hansen.

r v hansen (2007)

the leading new zealand case on presumption of supply r v hansen, appellant charged possession of cannabis purpose of supply. hansen argued being required persuade jury did not possess cannabis purpose of sale or supply inconsistent right under section 25(c) of bill of rights act 1990, presumption of innocence until proven guilty. argued section 6 of bill of rights act required section 6(6) of misuse of drugs act 1975 given meaning consistent presumption of innocence.

hansen contended consistency presumption of innocence achieved if section 6(6) of misuse of drugs act 1975 construed impose evidential burden on him which, if accepted jury, might create reasonable doubt of possession being supply. impose legal onus on crown satisfy jury beyond reasonable doubt appellant in possession of drugs supply.

the majority of court found reverse onus in section 6(6) of misuse of drugs act 1975 not rationally connected objective or not proportionate response problem, , in breach of section 25(c) of bill of rights act 1990. however, section 4 of bill of rights act forced court allow presumption-of-supply clause prevail, , hansen s appeal unsuccessful.