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Evidence Intoxication Australian Criminal

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Question:

Discuss About The Evidence Intoxication Australian Criminal?

 

Answer:

Introducation

According to the provisions of Section 8 of the Drugs Misuse Act 1986 (QLD), producing dangerous drugs like drying out cannabis and its preparation. Therefore in the present case study, Alfred shall be faced with the charges of producing dangerous prohibited substances. Similarly according to the provisions of Section 9 of the Drugs Misuse Act 1986 (QLD)[1] a person who is in possession of drugs shall be charged guilty of possessing dangerous prohibited substances. In the present case study, Alfred will face charges of possessing dangerous prohibited substances.
 
The onus of proof lies on the plaintiff. Therefore in this case the burden of proof lies on the prosecution. In this case Alfred can raise various arguments in his defence. Possession of a prohibited substance requires the knowledge of the item concerned and in control. In this case Alfred could state that he was not aware of the harmful consequences of the substance however he can also state that the possession of such drug was innocent according to the provisions of 121(1) of the Drugs Misuse Act 1986 (QLD).
 
It can be stated that cannabis used for medicinal reasons remains prohibited. Therefore in the present case Alfred do not have any option to ask the Court to exclude any of the evidences obtained by the police.
 
Peter shall also be charged guilty as he was aware of the activities of Alfred and helped him in setting up the lightning and plumbing.
 
According to the provisions of Section 6 of the Drugs Misuse Act 1986 (QLD)[2] supplying of dangerous drugs is considered to be an offence. Therefore in the present case study Gary not only produced but also supplied cannabis to Alfred for which he shall be charged of guilty.
 
The federal legislations and NSW can be used in order to seize assets or properties that have been obtained through serious offences involving drugs. According to Confiscation of Proceeds of Crime Act 1989 (NSW) such confiscation laws do not apply in case of minor drug offences like possession and small scale dealings. Therefore in the present case study the house of Alfred and Gary cannot be seized as tainted property
 

Elements of offence of Ongoing Supply:

Drug Misuse and Trafficking Act was implemented in 1985 with an object to stop the cultivation, manufacture and possession of drugs or narcotic substances[3]. If any person has caught to transport the prohibited drugs on an ongoing basis, he will be liable under section 25A of the Act. The main elements of the offence can be categorised as under:

  1. The individual must be supplied or taken active part in supply;
  2. The supplying goods must be prohibited drugs;
  3. Any person has let any premises out for storing the prohibited drugs.

Significant discretion given by section 25A to police:

The discretionary powers given by section 25A of the Act to the police officers to deal with the youth offender that can be classified as under:

  • Police officer may stop taking any action;
  • He may give informal warning;
  • Police may involve the parents;
  • Police can arrest the offender and release them without imposing any charge;
  • Police may impose charge on the offender but can release them on the basis of appearance notice or summon.

Circumstantial evidence to support prosecution for supply charge:

The term circumstantial evidence means a process where certain facts are needed to prove for solving the other events and cause a reasonable inference of the fact at issue. These evidences are not direct in nature but help to come into the conclusion. Forensic reports, fingerprints, involvement of large amount of money and possession of drugs are certain examples of circumstantial evidences[4]. The courtroom processes are followed in a court case. If the offender or the individual against whom the allegation has been made pleaded not guilty, the proceeding will be divided into prosecution and defence where the prosecuting parties will try to prove the truthfulness of the allegations made against the individual. The prosecution can prove the allegations by taking the help of direct and the circumstantial evidences as well. The circumstantial evidences can be as follows:

  • Whether any drugs has been rescued from the custody of the offender or not;
  • Whether there are any fingerprints found at the place of crime or on the objects or not;
  • Whether the forensic report supports the presence of the individual or not.
  • Whether there is any witness who saw the individual to be present in the area of trafficking or crime spot.
 

Drug possession:

In Australia, use, possession, cultivation or trafficking drugs are considered as offence. The drugs must be prohibited in nature. The most common prohibited drugs are marijuana, heroin, cocaine, LSD and MDMA[5]. In Australia, import and export of drugs or narcotic substances are also treated illegal. Under Drug Misuse and Trafficking Act, it has been held that a person will be held responsible under the Acts in case any drugs can be rescued from his possession. However, if the police officer found that the person, who possessed the drugs, has no control over it and some third party is controlling them, that third party will be held liable. In Solway v R[6] it has been decided that knowledge regarding the possession of drugs is not enough, the occupier must have certain control over the drugs.

Penalties:

In case of any minor, the maximum punishment is $5500 and imprisonment up to two years. In case of controlling heroin, the offender will get life imprisonment and non-specified fine. In case of possessing or controlling amphetamine or cannabis, the offender will get prison for maximum 14 years or unlimited fine.     

Manslaughter caused by prohibited drugs:

When a person kills other without any intention to kill, the process will be regarded as manslaughter. If a person supplied drugs to other and that other person died due to excessive intake of drugs, there is no option to punish the dealer or supplier for murder[7]. However, manslaughter can be charged against him. In Burns v The Queen[8] it has been observed that if a person dies for drug overdose, the dealer will be convicted under the charge of manslaughter. There are four types of manslaughter under the law such as manslaughter by:

  • Criminal negligence;
  • Omission;
  • Excessive self defence;
  • Unlawful and dangerous acts[9].

However, in case of holding the dealer liable for manslaughter, the prosecution had to prove the conducts of the dealer was substantial in nature. This principle was established in the case of R v Kennedy no. 2[10].

Prohibited drugs in residential premises:

In New South Wales, the matters regarding drugs are governed by Drug Misuse and Trafficking Act 1985 (NSW). However, there are several grounds found under the law. If the owner of the premises allows keeping or storing the drugs in his premises, he will be punished for illegally supply or manufacture the prohibited drugs and will be charged for commercial cultivation of the drugs. However, if the investigating officers found that the owner of the premises does not know about the fact that drug has been kept or stored in his premises and in case the investigating officers came to know that the owner has no control over the drugs, the owner will not held liable for occupying prohibited drugs[11]. However, premises mean any structure, vessels, vehicles or place.

The law of presumption of having control over the drugs is same in New South Wales and Queensland, but in this case the defendant should have to prove his innocence. On the other hand, maximum imprisonment for occupying prohibited drugs is 2 years or 20 penalties unit. The punishment criteria in Queensland are much tougher compare to NSW. The maximum penalties are 25 years.

 

Difference between drug equipments in NSW and QLD:

In Queens Land, maximum penalties for occupying drug related things are 15 years of imprisonment. This rule has been prescribed under section 10 (1) of the Drugs Misuse Act. Apart from that, occupying needle or syringe is also an offence and the punishment for the same is 2 years in QLD.

On the other hand, in NSW, the maximum penalty for using bongs, water pipes, and hookah is 2 years imprisonment and fine up to $2000[12]. However, imposition of fine is optional.

Effect of the deeming provision and how the issue is dealt with QLD:

According to the provisions of Section 331 it is a separate offence of supplying an individual with a controlled drug and at the same time it is considered to be illegal to supply someone with cannabis. However in such cases the penalty is less than those for trafficking or sale. In these cases if such amount is over the deeming provision, then the burden of proof lies upon the person who was charged guilty as those persons have been presumed to be selling those prohibited substance.

According to the provisions of the Drugs Misuse Act 1986(QLD), Section 5 deals with the trafficking of dangerous drugs while Section 9 deals with the possession of dangerous drugs[13]. According to the provisions of Section 5 of the Drugs Misuse Act 1986, an individual who is involved in unlawful trafficking of dangerous drugs is punishable up to 20 to 25 years of imprisonment[14]. However in case of possession of drugs according to the provisions of Section 9, possession can be actual or constructive. Possession of prohibited substance requires knowledge of the item concerned. However there is no defense in case of an individual who has forgotten that they were in possession of the drugs concerned. It was held in Williams v The Queen[15] that it is not possible to posses smaller quantities of drugs. However in some cases the circumstances may allow an intervention of possession of large quantities of drugs.

The s89A Evidence Act NSW has altered the pre-existing laws related to the right to silence in NSW:

In March 2013 The Evidence Amendment (Evidence of Silence) Act 2013 (NSW) passed in amended the Evidence Act 1995 (NSW) modifying the right to silence.  By introducing a new section 89A into the Evidence Act of 1995 it will allow the suspect to be cautioned although they might have the right to remain silent[16]. It has been stated that it may harm the defence if an individual fails to mention something at the right moment that relying later on trial. However previously in the Act there was no adverse interference that could be drawn from the suspect’s exercise of the right to remain silence in certain cases.

 

Possession and sharing of prohibited drugs and their charges along with reforms in the area of law:

Possession of prohibited drugs in an offence as stated under the provisions of Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW)[17]. However in case of a group of young individuals caught with some prohibited drugs in their possession in NSW the police is at the authority to enquire into the matter. The individuals can be charged for the offence of possessing prohibited drugs with prior knowledge about the type of the drugs along with an intention to consume it. Then in such cases according to the provisions of Section 10 of the Drug Misuse and Trafficking Act 1985 (NSW) will be charged guilty and shall be amounted to 20 to 25 years of imprisonment. In Clare v The Queen[18] it was held that it provides sufficient reason for a person to b proved guilty if he knows the existence of the item.

It can be stated that in such area of law reforms should be made by the appropriate authority by providing the suspect reasonable time to be heard and producing relevant documents in order to prove their innocence.

Controversies and risks associated with police involvement in drug crimes as a method of investigation and enforcement:

In recent trends drugs offences have been addressed as crimes without victims. However despite repeated public supports in keeping drugs illegal the involvement of police in such drug crimes created certain controversies. Over the past few years, there has been significant progress in improving the relationships of police communities. In the present world the major problem creating controversy between the police and the community involves the risks associated with present day crime. However this can be considered as an age-old problem about which the common people became aware of in recent world. In some cases the person suspected is convicted without giving him reasonable chance to justify and present relevant documents in support of his statements. According to Section 179 of the Police Powers and Responsibilities Act 2000 (QLD) there develops no criminal liability for acts which are in accordance with the approval given for a controlled operation[19]. However provisions of Section 193(5) exempts a police officer from liability for certain other activities which has been incurred during the course of a controlled operation or activity[20]. Such activities become necessary either to take advantage of an opportunity in order to gather evidence of criminal activity or to protect the identity of an operative.

 

Reference:

Betts, Kim S., et al. "Differences in polysubstance use patterns and drug?related outcomes between people who inject drugs receiving and not receiving opioid substitution therapies." Addiction 111.7 (2016): 1214-1223.

Burns v The Queen [2012] HCA 35.

Cairns, Rose, et al. "The impact of Australian legislative changes on synthetic cannabinoid exposures reported to the New South Wales Poisons Information Centre." International Journal of Drug Policy 43 (2017): 74-82.

 Caitlin Hughes and others, 'Trends And Issues In Crime And Criminal Justice - Australian Threshold Quantities For 'Drug Trafficking': Are They Placing Drug Users At Risk Of Unjustified Sanction? (Humanities & Social Sciences Collection) - Informit' (Search.informit.com.au,2018)<https://search.informit.com.au/documentSummary;dn=182594301964967;res=IELHSS> accessed 18 January 2018.

Clare v The Queen [1994] 2 Qd R 619.

Hibbert, D. Brynn, and John Sutton. "A chemical view of analogue drug laws in Australia: what is structural similarity?." Australian journal of forensic sciences 49.6 (2017): 605-625.

Jason Ferris and others, 'Random Breath Testing In Queensland And Western Australia: Examination Of How The Random Breath Testing Rate Influences Alcohol Related Traffic Crash Rates' (2018).

Jeremy Davey, Kerry ArmstrongPeter Martin, 'Results Of The Queensland 2007–2012 Roadside Drug Testing Program: The Prevalence Of Three Illicit Drugs' (2018).

 Jeremy Prichard and others, 'Sewage Epidemiology And Illicit Drug Research: The Development Of Ethical Research Guidelines' (2018).

Lancaster, Kari, Kate Seear, and Carla Treloar. "Laws prohibiting peer distribution of injecting equipment in Australia: A critical analysis of their effects." International Journal of Drug Policy 26.12 (2015): 1198-1206.

'Legal Classification Of Novel Psychoactive Substances: An International Comparison - Novel Psychoactive Substances - Chapter 1' (Sciencedirect.com, 2018) <https://www.sciencedirect.com/science/article/pii/B9780124158160000018> accessed 18 January 2018.

McBride, Duane C., Yvonne M. Terry-McElrath, and Curtis J. VanderWaal. "Public Policy and Illicit Drugs." Prevention, Policy, and Public Health (2016): 263.

McNAMARA, L. U. K. E., et al. "Evidence of intoxication in Australian criminal courts: A complex variable with multiple effects." Monash UL Rev. 43 (2017): 148.

Monica J. Barratt, Jason A. FerrisAdam R. Winstock, 'Safer Scoring? Cryptomarkets, Social Supply And Drug Market Violence' (2018).

Phong K. Thai and others, 'Monitoring Temporal Changes In Use Of Two Cathinones In A Large Urban Catchment In Queensland, Australia' (2018).

R v Kennedy [2007] UKHL 38.

Solway v R (1984) 11 A Crim R 449.

Stubbs, Julie. "Murder, manslaughter and domestic violence." (2016).

Williams v The Queen (1978) 140 CLR 591.

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