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On drugs: Suspend rights and consider them guilty

Emily Portelli

by Emily Portelli

28 Feb 06:00am

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Filed under: Crime, Drugs, Human Rights, Legislation, Police

132 comments

I appreciate the high standard of human rights we enjoy in Australia just as much as the next person. But when it comes to the possession of illegal substances, I think it’s better to be presumed guilty rather than innocent, even if it intrudes on our basic right to a fair trial.

The law can protect you when pre-historic curry and cheap vodka isn't the only thing you find in the communal fridge.

In 2008, solicitor Vera Momcilovic was convicted of trafficking ice found in her apartment, despite her claims that the drugs were her boyfriend’s and she knew nothing about it.

Now she’s challenging the legitimacy of the state’s drug laws in the High Court, claiming the Victorian Charter of Human Rights effectively invalidates them because they remove the presumption of innocence.

So the High Court’s current conundrum is to decide whether it’s better to have lax laws that make nabbing drug dealers difficult or to compromise a citizen’s right to a fair trial.

The principle that an accused person is innocent until proven guilty, a fundamental right guaranteed in many legal systems, including our own, means that the burden of proof lies with the prosecution. The prosecution has to prove beyond reasonable doubt that the accused is guilty of the crime, rather than the accused having to prove they are innocent.

It effectively gives the accused person the benefit of the doubt, based on the idea that most people are not criminals.

But when it comes to the surreptitious and sinister world of the illicit drug trade, the law works a bit differently. If a drug is found at your residence, you’re presumed to be in possession of it, and if the drug found is over a specified quantity, you’re deemed to be trafficking.

The onus of proof is reversed, so in order to avoid a conviction, it’s up to you to prove your innocence. This is why Ms Momcilovic is arguing the law is invalid. 

But the onus was reversed by lawmakers for this particular piece of legislation for a reason. Unless a person is literally caught with drugs in their hand, proving they were aware and had control of drugs found in their vicinity is extremely difficult evidence-wise.

I’m guessing drug-dealers don’t go handing out receipts for two grams of cocaine with a 30 day money-back guarantee. If it were up to the prosecution to prove beyond reasonable doubt that the accused person was indeed knowingly and intentionally in possession of the drugs, everyone who got caught with drugs would claim they weren’t theirs. Think Schapelle Corby, or Paris Hilton.

So, while this law may be incompatible with the presumption of innocence, it may also be a necessary evil. Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night, knowing it’s that much easier to get drug-affected people off them.

Although, as my local streets are in the inner-city suburb of Richmond, I’ll continue to walk with my eyes trained to the ground to avoid any stray syringes. (For those unfamiliar with the area, the drug trade is so evident here that locals would be forgiven for turning up to Disney on Ice expecting to see Mickey and Minnie scratching their skin and sculling water.) 

Admittedly, one hazard of this deemed possession is that it can pose problems for those who like to associate with characters my grandmother would call unsavoury. Young people living in shared houses are particularly at risk of unknowingly getting into a situation hairier than Garry Lyon in Speedos.

I recently warned a friend whose housemate enjoyed dabbling in narcotics that if police found drugs at their place, even if it was stuffed in a chicken carcass in the freezer without her knowledge, she could end up in real trouble. I guess one of the biggest dangers of the reverse onus is that innocent housemates can be inadvertently caught up in someone else’s mess. 

Now, I realise this makes me sound naïve and idealistic, and perhaps I am, but I have faith that, should my friend be charged with possession, she’d be found not guilty. I would hope that physical evidence, character witnesses and my friend’s own testimony would be sufficient to clear her name.

Our justice system, like every other version of it, is imperfect and constantly evolving, but it’s the best we’ve managed to come up with in over two million years, so I figure it’s due some credit. 

Plus, if the case was a serious one being heard before a jury in the Supreme or County courts, an innocent man would have the added safety net of being tried by a jury of his peers.

Although juries are instructed to, and technically should, follow the letter of the law, it’s likely their decisions are based more on logical and rational thoughts about whether or not they believe a person is guilty, rather than whether a party sufficiently discharged their theoretical burden of proof. 

Being what is effectively presumed guilty until proven innocent is not ideal. But, until there is a law that can ensure drug convictions where they are warranted, it might just be necessary.

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132 comments

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    • Erick says:

      05:14am | 28/02/11

      Why limit this principle to drug possession? Surely other crimes are just as worthy of abandoning the presumption of innocence. Burglary, murder, financial fraud, graffiti, illegal parking - all of them harm someone.

      In fact, why presume anyone is innocent at all? It would surely save time just to assume that every person is guilty of some sort of crime. Can you prove you’ve never killed anyone, or parked in a no-parking zone? Didn’t think so!

      Throw everyone in jail. It’s the only rational solution.

      Reply

    • acotrel says:

      08:00am | 28/02/11

      A mate of mine has the answer to all these problems.  He says ‘take ‘em out the back and shoot ‘em!’

    • Scot says:

      09:54am | 28/02/11

      And while we are taking action on the sale of drugs the Government should also start doing random Alcohol and Drug tests of the judges and solicitors that attend court to ensure they are physically capable of representing their clients. I have a step brother that smoked illegal substances for years and it masked a mental instability condition that he is now being treating for under a medical specialist for the rest of his life?

    • Leto says:

      11:30am | 28/02/11

      I love dope. I love getting high, and then tucking into a favourite book. Or watching some grand designs, or playing solitare on the computer.

      I smoke after work everyday. It’s my way of relaxing. Some other people choose a beer, or three blocks of chocolate. But I like my dope.

      Emily, I quite dislike people like you. I ask you, when I smoke some dope, who is the victim? Who have I hurt? Am I both the victim and the criminal?

      The way I choose to live my life has no impact on anyone else. And yet other people attempt to impose their will upon my choice of lifestyle.

      You might like getting tag teamed by a group of midget footballers for all I know Emily, but it doesn’t hurt anyone (as long as everyone is being safe), so I don’t care. Couldn’t you extend me the same courtesy with my lifestyle choice?

    • stevem says:

      01:07pm | 28/02/11

      Speeding and parking tickets already operate on the presumption of guilt.

    • Baal says:

      01:38pm | 28/02/11

      It may not suprise you that people are lobbying for the onus of proof in rape cases to be reversed precisely because it is so hard to prove rape unless you are cuaght red handed

    • VVS says:

      02:26pm | 28/02/11

      Actually Baal it is quite easy to prove rape if the woman presents herself to police immediately after it happens for the purpose of filing a complaint and having evidence taken. There is a tonne of forensic evidence that can be gathered.

      Were the presumption is shifted it would be quite hard to disprove rape if you were innocent, unless you can show you were somewhere else at the time alleged. If you were home by yourself you may find that hard to prove.

      You cannot shift the presumption in cases where there is a complainant. It leaves the system open for abuse.

    • Markus says:

      02:46pm | 28/02/11

      @Baal, it is even more difficult for a defendant to prove that they did NOT rape someone (how does one prove a negative?).
      The reason why the onus should always be on the prosecution?
      The victim doesn’t go to prison for 25 years if they are unable to provide enough evidence to prosecute.

    • Jugg says:

      02:54pm | 28/02/11

      VVS,

      Consent is the basis for most rape defences.  That rules out most of the forensics you rely on for your point.

    • baal says:

      04:40pm | 28/02/11

      I was trying topint out i we let the presumption of innocence slide for some crimes advocates will have keep lobbying for it too be removed for other crimes until we find our freedoms severely curtailed.

    • acotrel says:

      05:04pm | 28/02/11

      Leto, the victims are your family, when they have care for you after you develop schizophrenia!

    • Dissident says:

      05:06pm | 28/02/11

      Erick’s facetious remark is completely correct in its intent to point out the ridiculousness of your suggestion - everyone is entitled to the presumption of innocence. It is an inalienable right. It must stay that way.

      Emily, if you are really worried about the drug problem, there is a really easy fix - it just might be a price you won’t want to pay. All you need to do is have the government distribute lethal ‘hot shots’ through some undercover agents. Get plenty of ‘hot shots’ out there and people will be too scared to do drugs. Sure a few 15 year old girls will die in nightclubs - but the message would get out real quick. Only the really addicted druggies would still take the chance, and anyone that far gone is probably a liability to society anyway…

      At the same time, put more money into rehab so the addicted who want to beat the habit can do so. Naltrexone clinics, for instance, wouldn’t give out the ‘hot shots.’

      Unacceptable cost? You are talking about removing the right to presumption of innocence - a few lives are less important than this fundamental right.

    • Seano says:

      06:23pm | 28/02/11

      I rarely agree with anything you say but on this occasion I do, if we start automatically convicting people over drugs where do we draw the line?

    • Rachel says:

      08:38am | 01/03/11

      There are lots of people harmed by the drug trade, Leto. Unless you are growing the stuff yourself- in which case puff away-there is all manner of crime created even by the “soft” drugs trade. The amounts of money that are involved in the production and sale of dope means that it goes hand in hand with violence, threat and intimidation. There is a victim, even if you can’t see them.

    • The Civet says:

      04:19pm | 01/03/11

      You ignore the obvious point. Namely, there would be no drug dealers if drugs were legalised.

    • Scot says:

      05:51pm | 02/03/11

      The Civet. There would be no drug dealers or traffickers if they where executed. If we had an enforcement organisation that stopped these dugs getting into the country in the first place instead of Labours pores border policy. The law is also an ass. And some of the judiciary are themselves not clean, drug users and alcoholics, how can they set an example and preside over the law.

    • deb says:

      05:57am | 28/02/11

      It makes me laugh in this small town i live in to see the local drug dealers openly selling from their homes.Nobody says much about it,surely the local police know as much as they are willing to.Cars in and out of one house all day long.
      Only weed, they say,harmless! yeah sure.
      blind eyes for me.

      Reply

    • TChong says:

      07:12am | 28/02/11

      deb, you live in a small town, lots of customers for the dealer, - probaly suggests that for the majority of users, pot is indeed harmless.
      Cone heads do their stuff , then sit around watching Avatar and Matrix DVDs, before getting the munchies. They dont go around beating people up, or vandalising things. They dont want trouble, and coppers on their case.
      That is mostly the domain of piss heads.
      I’m sure you see plenty of them driving up to establishments to get their fix

    • Chris L says:

      08:19am | 28/02/11

      Deb your town is probably a lot safer than most because of this. If everyone were getting drunk instead of high you would notice the difference.

    • PaulB says:

      08:40am | 28/02/11

      Seeing more and more schizophrenia among the dope heads, particularly the ones doing Skunk, of which the numbers are rising.  Harmless in the past TChong, yes, but far less so today.  At least the Alcoholics can sober up, if briefly.

    • kerry says:

      08:53am | 28/02/11

      Hey, here’s an idea - just a little extension to the “presumption of guilt” as underlined by the pernicious undermining of our precious laws by the passage of the Anti-Terrorism Act in 2005.

      How about we scoop up those knowingly aiding and abetting the “surreptitious and sinister world of the illicit drug trade”?

      Emily, surely you have a responsibility, nay are duty-bound as a lawyer, to report your friend’s friend’s dastardly dabbling in narcotics.

      Then we could extend that to neighbours who don’t dob in drug dealers. Oh, sorry deb, that would include you.

      But, I’m sure you’d have no trouble convincing a court of law that you didn’t “know” about it. Oh, wait a minute, you wouldn’t be able to – off to jail for you, do not pass go.

    • fairsfair says:

      10:03am | 28/02/11

      what about when they get bored of the high from weed? That is what I don’t get about people who try and rationalise any drug use as being ok.

      Just like when you were 14 and the cool kids sat on the oval smoking, the thrill of that soon wore off. Next it was getting drunk on the weekends, then they tried weed. By the time we were 18 the majority were over it all bar the drinking but the people that these laws should protect were already experimenting with pills, cocain and herion.

      PaulB is too right. Also, from the dealers perspective they might come across a cheap batch of pills to flog off to the dope users. Now they have them doubley dependent on them. Their income stream is secured and they are generating a group of people with an insatiable hunger for any kind of drug. 

      Family friends of mine’s son overdosed in the centre of Brisbane last year. He was 28 and from a loving middle class “normal” family. He started smoking weed at 15 and soon progressed through the ranks. He was manic depressive and off his meds. He was not living at home but regularly punched his way in through a plate glass window so he could sell his other’s TV and jewellery to score. He is dead now, their pain is not over. How the hell can you say that dope is just for stoners who eat CCs and watch the matrix?

    • Chris L says:

      10:51am | 28/02/11

      @Fairsfair the idea of weed being a portal to harder drugs has been investigated many times. No evidence has ever been found of a causal link. While some progress from cannibis to more hard core substances this is likely because they were simply curious and would have tried them anyway whether they smoked pot or not.

    • Ando says:

      02:17pm | 28/02/11

      Fairs fair,
      Every drug user starts with alcohol. What happens when people get bored with alcohol?Should we ban alcohol.
      What seems to be ignored in the transparent attempt to scare people straight is that users see far more people who are fully functional adults with no social or professional problems who use pot.
      On the other hand those who dont use think they can spot a druggie a mile off when they are probably sitting next to one. Thereis no honesty in this discussion.

    • Roja says:

      04:02pm | 28/02/11

      @Fairsfair - did you get your knowledge of drugs from a family first brochure?  Sorry to hear about your friends son, but it is important that those under 20 should really stay away from weed, alcohol, LSD and so on until their brain develops - they are at a much higher risk of mental illness from abuse of drugs.  Actually that is putting the cart before the horse, they are at much greater risk of exacerbating their existing mental illness by using drugs (and research has shown those with a mental illness are far more likely to be attracted to drugs).

      The mistake you need to be careful of is categorising users with abusers - like pokie players and pokie addicts, social drinkers and alcoholics, muslims and islamic fundamentalists - the vast majority of drug users have perfectly functional lives.  It’s the overwhelming minority that cause the problems.

    • fairsfair says:

      04:55pm | 28/02/11

      I think our colective attitude toward alcohol isn’t all that flash either, but prohibition does not work. I don’t like smoking so I had no interest in even trying dope, but I have been drunk on more than one occasion and I drink socially and would say I am a light drinker. Therfore I don’t have an issue with alcohol, nor do a lot of other people, but there are heaps about who do. If they can’t say no to another drink, they are just a likely to not say no to trying other drugs also. I have seen it happen many a time. That is just my own social observations and my opinion. I am not claiming to be an expert and my comment was in response to people who think that marijuana use is ok. I have the same feelings about binge drinkers.

      Roja no, I do not partake in family first brochures. I prefer the Bunnings catalogue. I agree to an extent on the exacerbation factor, but it is still influential and would not be the case if he had not smoked dope as a teen. The difference between your comparison of this to social gambling and moderate alcohol consumption is that gambling and alcohol consumption are not illegal. These dugs are illicit and the legalisation of them is not the topic being discussed.

      Talk to a police officer about the difference in trying to arrest someone who is pissed and someone who is on Speed (weed is often laced with amphetimines and other substances) which is what PaulB is getting at. It isn’t the good old days.

      It is just the nonchalant attitude that I object to and that includes those towards legitimate substances like alcohol. The sheer definition of an additction is when you refuse to admit that you have a problem and that you are doing what you are doing is wrong. Using terms like functioning addict is just enabling people to continue to do the wrong thing. 

      I have the same problem with the free biscuits in the tea room, but me scoffing a scotch finger and driving home is hardly going to end up putting the lives of others at risk.

    • acotrel says:

      05:08pm | 28/02/11

      John Howard set a precedent when he eroded our rights with the anti-terrorist laws!  Now the Lib supporters have gone berserk, and believe they can make laws to lock anyone up without showing just cause?

    • acotrel says:

      05:37pm | 28/02/11

      Deb, I too live in a small country town.  In the next one the biggest service station was owned by a policeman.  A little while ago he was charged, and about four others were given the flick from the force.  It took four years for it to happen, but the effect isn’t too bad.  You have to ask the question - with pokies and drugs where does the money come from that the kids flash around?  Our local economy is pretty small.

    • acotrel says:

      05:43pm | 28/02/11

      @Kerry ‘Then we could extend that to neighbours who don’t dob in drug dealers. Oh, sorry deb, that would include you.’

      I take it you llike to live dangerously.  How do you dob in your friendly drug dealing neighbour, when Mr Plod is on the take.  Do you think there wouldn’t be reprisals? I don’t b lame Deb for keeping schtum.  The only way is to remember the old saying ‘loose lips sink ships’ and be careless about who you gossip to!

    • pat says:

      06:12am | 28/02/11

      “Now, I realise this makes me sound naïve and idealistic, and perhaps I am, but I have faith that, should my friend be charged with possession, she’d be found not guilty. I would hope that physical evidence, character witnesses and my friend’s own testimony would be sufficient to clear her name.”

      Yes, you sound very naive.  The war on drugs is an ugly business and your friend would likely be in serious trouble due in part to the laws that you are defending.  The fact is that no matter how tough we get on drugs there will be almost no effect on drug use within the community.  These laws can and do result in innocent people being sent to prison.  How would you defend these laws to your friend behind bars?  With this sentiment:

      “Being what is effectively presumed guilty until proven innocent is not ideal. But, until there is a law that can ensure drug convictions where they are warranted, it might just be necessary.”

      Well this presupposes the idea that drug convictions actually reduce drug use within the communty, but it doesn’t.  It does however cost a lot of tax dollars and ruin many lives.

      Soon enough we will have a situation similar to the US, where entire police departments are funded by seizure laws and the police sit outside knwn dealing areas and catch people driving away with drugs and then legally take their cars and sell them.  They are so reliant on this source of revenue that the drug dealing neighborhoods are left virtually untouched so they can keep getting cars.  This tough on drugs strategy has resulted in the highest rate of improsonment on the planet, and the worst rates of drug use in the western world.

      Reply

    • Gregg says:

      08:15am | 28/02/11

      Anything that helps to restrict the serious drugs trade is fine and if nothing else it keeps a level of awareness in the community and all power to seizing anything of drug dealers and maybe it ought to be their balls more often.

    • sick of this insanity says:

      06:32am | 28/02/11

      Rather than compromise our rights, wouldn’t it be smarter to simply decriminalize drugs? This would take away billions in revenue from organized crime, put billions back into the real economy, lead to safer drugs, no pushers and less drug abuse, eliminate a huge swathe of crime and begging, help addicts maintain touch with the rest of society, reduce the burden on policing, reduce the burden on health and social services and remove the attraction of illegality to the young.

      I can’t see a single positive for prohibition.

      Reply

    • Gregg says:

      08:19am | 28/02/11

      Yeah, yeah yeah! but that was the beatles.
      Sounds great in theory until you start to look at controlling it even legally and as for reducing all those burdens, what if it goes the other way?

    • Chris L says:

      08:22am | 28/02/11

      Don’t bring logic or reason into this discussion! It obviously does not belong.

      Now I’m off to get pissed and start a fight!

    • Reg says:

      09:27am | 28/02/11

      I’m afraid Gregg may welcome prohibition of alcohol as well, despite the US experience.

      On one side we have the evils of prohibition and on the other the problem of the public purse receiving income from drugs and alcohol. There is no approach that will be universally acceptable and the nearest we can go is not to ban it and not to tax it, leaving public abuse as the only offense.

    • Jade says:

      06:32am | 28/02/11

      Put yourself in the position, someone brings drugs into your house and they are caught, would you like a fair trial or just to be deemed guilty because they are in your house??

      Drugs really aren’t that bad (except for a few), its the people who lack self control that are the problem.  If the government legalised them they would make a fortune from the amount of people that do them.

      Reply

    • jade says:

      07:05am | 28/02/11

      It should say you are caught not they…

    • deb says:

      07:15am | 28/02/11

      tunnel vision?self control? getting hooked on drugs is not a consious decision but an addicition.all drugs are bad.

    • Grumpy says:

      07:57am | 28/02/11

      And legalizing would save lives because people wouldn’t be afraid to seek medical assistance when things go wrong.

    • Dave says:

      08:18am | 28/02/11

      You say that Drugs really aren’t that bad…that’s a naive statement…my Brother in law smoked pot until he decided that it didn’t give him enough of a kick anymore so he tried something harder and it killed him the first time he used it. Yes, it was his own lack of self control, but that’s cold comfort to his family left behind. The only thing that decriminalisation would do is open up a legal minefield when someone kills themselves with a legally dispensed product.

    • Gregg says:

      08:23am | 28/02/11

      @Grumpy,
      When things go wrong, just like an alcoholic not seeking treatment, all they have the mental capacity they have is to seek another hit.

    • grumpy says:

      08:47am | 28/02/11

      Yea i can imagine someone Overdosing on heroin, then scoring another hit before they have recovered…I was talking about it being a stigma, Young people in particular being scared of their parents or their friends who they may be sharing the drugs with maybe scared to call an ambo because they think they will get in trouble…

    • Jade says:

      11:26am | 28/02/11

      I have dabbled in plenty of substances, I am not dead nor am I an addict.  Self control is all you need, I also know plenty of people who have thrown their lives away due to drugs.  I also grew up with a drug addict in my house.  Drugs aren’t all that good either, but you will never stop people doing them.  The best thing you could do to control the supply and quality would be to legalise them.  It may even turn young people off once there is no thrill to doing something that breaks the rules.

    • Chris L says:

      11:49am | 28/02/11

      @Dave I’m sorry to hear about your brother, but similar things can be said about driving. Young people seek excitement and end up killing themselves (and others when it comes to driving).

      We either try to legislate and regulate absolutely everything that could be dangerous to young people or we give them the freedom to explore and accept the danger inherent in this.

    • acotrel says:

      08:24pm | 28/02/11

      Drug addicts should be committed to an institution under the mental health act, treated and released.  Legalised drugs should be supplied on prescription under the surveillance of a doctor. Drug addiction should be a notifiable illness, and a register kept by the authorities. Just as people with HIV must not infect others, it would be reasonable to require disclosure under law when marrying.

    • acotrel says:

      08:29pm | 28/02/11

      Using drugs might be good fun, but what sensible person would want an addict in their family? These days it doesn’t seem to matter who or what you are, the morons still come creeping around!

    • MatLon says:

      06:43am | 28/02/11

      That sacrifice of a small liberty you speak of, it is something we have got used to in the last decade. You speak of our justice system as “evolving”, then why does it seem to me that is a de-evolution.

      I would be interested to read about your thoughts on the AG’s implementation of model drug schedules for Commonwealth serious drug offenses; scheduling 100’s of plant species (native included) because they believe organized criminals have hydroponic cactus and wattle gardens on the go, spare me.  This is what we get after “more than two million years”?

      Do you have a wattle tree in your garden? Maybe your grandfather does? He could be charged with being in possession of DMT, just by having the live plant material in his possession, whether he has the processed material won’t mean anything. As you know, the burden of proof will be on him to prove he was not planning to produce DMT.

      But it’s the best we can come up with right? He just has to prove with “physical evidence, character witnesses” that he is not an unsavory character. Sound reasonable to you?

      Our drug laws and wars are a bad joke, don’t try to justify them for one second.

      Reply

    • Gregg says:

      08:27am | 28/02/11

      You’re having some bad nightmares are you or just think you’re a dog barking up the wrong tree or didn’t decontaminate the bark from the accumulated dogs piss!
      I must admit though that you’re not alone for plenty of people in politics and their advisors must be regularly loaded.

    • Steve says:

      07:07am | 28/02/11

      Whilst I fundamentally agree with you, in that drugs and drug dealers are an horrendous and lethal blight on this wonderful country, I must take exception to tampering with the legal avenues for dealing with it. I, too, intensely dislike drugs and the results related to drugs. But if we change the way the Justice system works for one set of circumstances, how long will it be before we find another crime which must be dealt with in the same way - and then another - until, eventually, our entire system of Law and Justice has morphed into something entirely different?

      Reply

    • TChong says:

      07:54am | 28/02/11

      Like guilty until you can prove yourself innocent, ?  just like the author implies?

    • acotrel says:

      08:03am | 28/02/11

      My question is - ‘who guards the guards?’

    • Simon says:

      08:09am | 28/02/11

      It’s called precedent, and in the legal system it’s a very strong director. Once set, it can roll on to other laws if challenged enough.

      “Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night” Nothing’s worth sacrificing the liberty of innocence until proven guilty, and that liberty is by no means small. C’mon man, read a history book!

    • Brian says:

      12:04pm | 28/02/11

      Personally I wonder if the choice of ‘Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night’ was deliberate, given the oft-misquoted (and doubtless going to be misquoted by me) ‘those who would give up a little essential liberty for temporary safety will recieve neither and deserve none’.

      I’m sure I got it a little wrong, and I don’t recall the exact author (some olden day yank who decided revolution was a good idea), but the similarity is striking.

    • LL says:

      09:55am | 01/03/11

      acotrel you are a self righteous idiot who obviously doesn’t live in the real world or relate well to others….didn’t play in the sandbox well i gather….social ignorance, personal control and personal responsibility are the real issues with drugs…many drug users live normal lives…and do not become addicts…the minority and narrow minded always ruin everything for all others…Legalization is the only way to take out the criminal element

    • Kevin says:

      07:15am | 28/02/11

      The presumption of innocence “effectively gives the accused person the benefit of the doubt, based on the idea that most people are not criminals.”
      No, it’s not based on “the idea that most people are not criminals”.  It’s based on the notion that in a free society, if the state wants to take away an individuals liberty, it is up to the state to prove the person’s guilt and the person is not required to disprove all and any accusations.
      How exactly does a person prove they didn’t know that their boyfriend/girlfriend/flatmate was hiding drugs in their house?
      I’d rather live in a society with a few drug dealers than one in which the state could imprison me on trumped up charges which I have to disprove.  I’m really surprised that a lawyer could be so naive.  It is exactly that sort of naiveity and trust in the state that paves the way for totalitarianism.

      Reply

    • Liz says:

      04:36pm | 28/02/11

      You can’t prove a negative .....

    • Mark says:

      07:34am | 28/02/11

      Apparently, Emily is a “Lawyer turned wannabe journalist”. I think I understand why she’s apparently left the legal field.

      Reply

    • Gregg says:

      08:31am | 28/02/11

      No Mark, it’s not apparently twice over for the evidence is clear enough.
      What there is no evidence of is your ability to understand.
      It’s called clear thinking and drawing conclusions.

    • Chris L says:

      02:04pm | 28/02/11

      I see nothing “clear thinking” about suspending presumption of innocence in any situation. How comfortable are you over allowing the government to pronounce you guilty of a crime without having to prove it?

    • mary says:

      07:34am | 28/02/11

      Someone gave my husband drugs once, just to take care of for a little while .. He hid them in our garage. I didn’t know about it.

      I like the idea of being presumed to be innocent.

      Reply

    • Gregg says:

      08:35am | 28/02/11

      Well Mary, wasn’t that grand and as Emily indicates, we do have juries but if it was your husband who was charged, it would be good that he was presumed guilty.
      And how did you know about it if they were hidden!

    • SM says:

      08:50am | 28/02/11

      that’s what he tells you…

    • mary says:

      10:11am | 28/02/11

      I found out after Gregg. And what if I had been charged without knowing about it?

      I like the idea of being presumed to be innocent for all of us.

    • malohi says:

      07:38am | 28/02/11

      Ignorance of the law is no defence.
      If you don’t know occupiers liability and allow drugs in your house, tough.
      To prove possession you have to prove knowledge. It is too easy for someone to just lie and say, “I didn’t know it was there.”

      It is not a presumption of guilt as you claim, It is a rebuttable presumption that one should know and control what comes in your own house (or car, room etc) and if you honestly did not know, give a reasonable version of why you either did not know or could not control.
      But if, in that it comes out that you knew about the drugs, and they were in YOUR house (ie. your responsibility), you are guilty of the offence anyway so, tough.

      Let the court decide and then vent your ignorance again when you aren’t satisfied.

      Reply

    • St. Michael says:

      09:43am | 28/02/11

      The amusing part is that virtually every *civil* court in Australia does have some implict acknowledgment that, in fact, ignorance of the law abounds and can even function as a potential excuse for some actions.

      In *criminal* courts it is not an excuse—explicitly, by statute—mostly for the same reasons as the reversal of the onus of proof in drug possession cases.  If they did allow it, every flathead who broke into a house would be bleating that they didn’t know burglary was a crime.

    • CJ Morgan says:

      08:17am | 28/02/11

      Ms Portelli may well be naive but there isn’t much idealism on display here.  Her acquiescence to State erosion of individual rights is symptomatic of the gormless Gen Y tendency to meekly surrender the liberties and freedoms for which their forebears fought.

      I’m with ‘sick of this insanity’, only I’d go further and legalise recreational drugs, while regulating them as we do with alcohol and tobacco.  The current approach isn’t working and never will - most problems don’t stem from the the drugs themselves, but are direct products of their stupid illegality.

      Reply

    • Elphaba says:

      08:21am | 28/02/11

      No.

      Regardless of the crime, all people accused should be considered innocent until proven guilty, and the onus on the prosecution to prove them guilty.

      We cannot start demonising the accused because of something they might have done.  Too many people are convicted of crimes they didn’t commit already - presuming guilt rather than innocence could make it worse.  It is the job of the prosecution to prove with the evidence given to them that a person is guilty, and if they fail to do this, then they haven’t done their job, and the accused got their fair trial.  That is fair.

      Yes, it might mean a criminal walks free to commit another crime.  But they wouldn’t if the prosecution and all those involved in gathering evidence, did their job properly.

      Presuming guilt rather than innocence would let defense lawyers become lazy, because the onus isn’t on them anymore.  If they’re good at the job, and the police are good at their job, then there’s nothing to fear with criminals being let off and back onto the streets.

      When I think of assumed guilty, I think of Guantanamo Bay - a abhorrent situation and a flagrant violation of human rights.  Absolutely disgusting, and a big contributor of why I have very little respect for the US and their opinions on anything.

      I expect to be flamed for this…

      Reply

    • Tim the Toolman says:

      08:58am | 28/02/11

      No flaming here, as usual, I agree with your points.

      Further, I find it odd that we have a law which effectively tells me what I can and can’t do directly with my body.  We have laws that exist to prosecute people behaving in a way that adversely affect others…we should simply prosecute those who cause problems for others, rather than presuming guilt and charging people for posession of something that may, perhaps, induce them to act in a way which may endanger another. 

      I used to be very anti-drug, until I realised it was just another method of control of the individual when we already have laws in place to deal with actual crime, rather than this half-developed concept of pre-crime.

    • Elphaba says:

      09:33am | 28/02/11

      @Tim, thanks.

      Regardless of whether someone has committed what the public considers a most abhorrent crime (people like Josef Fritzl, for example) - they are still entitled to a fair trial, a good defense laywer, and a jury of their peers.  All evidence deserves to be considered, and all witnesses to be heard.  It’sa process, and the best one we can hope for.

      The idea of treating a suspected criminal as anything less than a human being, or throwing someone in jail and leaving them there, for something they ‘may’ have done, even if the police caught them in the act, makes me feel a little ill…

    • Gary says:

      10:25am | 28/02/11

      There was another time when guilt was assumed, and the onus was on proving one’s innocence. I think most records refer to a town called Salem, where suspected witches were dunked underwater, and if they lived, the suspicions were proven. Too bad, that innocence was only provable by the death by drowning of the majority of suspects, ffs. I think that was another US invention, just like Guantanamo Bay.

    • Baal says:

      12:37pm | 28/02/11

      removing someones liberty is up there with physical assault and murder as the most heinous thing to do to someone. That being said the state sometimes needs to remove liberty from people for the benifit of society as a whole.
      This should only be done when it is proven beyong a reasonable doubt that the person is guilty of the crime. I cannot see how the law in this case can do this.
      It is bad enough that our bail laws and overcrowded courts can see a person spend months and months in remand only to be aquited but in the mean time lost thier employment, reputation and often suffered at the hands on other inmates

    • Elphaba says:

      02:23pm | 28/02/11

      @Baal, exactly.  I have no problem with paedophiles being permenantly sequestered from society in their own communities in the midle of nowhere, and denied the use of a computer, if it keeps kids safe.  But after they’ve been convicted, not before.

    • AdamC says:

      08:21am | 28/02/11

      This article seems to accept media spin around the case. As I understand it, what the Victorian laws actually do is create a rebuttable assumption that, if there are drugs in your house, you know about them or they are your drugs. I don’t believe that this is equivalent to losing one’s presumption of innocence (it’s more akin to an exercise in common sense), but I suppose that is what the high court is going to decide.

      To me, what this case shows is the dangers of vague rights charters. The fact is that the provisions of the Victorian laws have been fairly uncontroversial up to now and are quite standard nationally (and probably internationally). Why have they suddenly become an issue? What happened to rights chartes supposedly not messing with our democratically-created laws?

      Reply

    • Chris L says:

      08:36am | 28/02/11

      Up until the 1930’s cannibis was perfectly legal and widely used. Oddly enough society was able to function quite fine, probably because smoking weed is less harmfull than nicotine, it is not physically addictive (although some grow an emotional dependancy, just as some people do over television shows), it has medicinal properties that help many ailments and makes people mellow (rather than making them violent the way alcohol does).

      Cannibis was made illegal to bolster the wood pulping industry because of the R&D that had already been spent on that process. Business did not want to have wasted all that funding if paper could be made cheaper and in larger quantities from cannibis.

      Time to end the charade and legalise. Take the power out of criminals, regulate the quality of the product (thus safety) and get some tax dollars out of this enormous industry.

      Reply

    • Zoe says:

      11:36pm | 28/02/11

      Yes, actually how many of the older generation have been smoking weed for many many years without going on to harder drugs and without harming their health? A lot more than most people would even realise I bet.
      This is only my opinion, but I think the chemical laced hydroponic grown weed is what brings on mental illness.
      The older generation prefer the naturally grown stuff. It doesnt seem to be the strength of it because most grow using good female clones to ensure quality.
      Also people blame weed for mental illness etc in relatives when in reality they dont actually have a clue what else the person is on.
      Everyone I have ever discussed it with has said that weed is by far easier to give up than cigarettes, but it still comes down to the individual.

    • 4leaf says:

      08:42am | 28/02/11

      Let me get this straight - for a drugs charge, you advocate the accused being required to prove their innocence, but an accused murderer, paedophile or bank robber should continue to enjoy the presumption that has underpinned western justice systems for centuries?  This is why your argument is so daft.  If you assert that the existence of syringes on your streets requires, as a matter of logic, that an accused person prove their innocence, then surely the murder of an innocent, or the molestation of a single child requires the same to occur.  We do not do this because the very foundation of a modern society, where the balance of power is split among the Executive, Parliament and Judiciary, requires that when the Executive accuses a person of a crime, the individual is presumed innocent and it is for the Executive to prove that the accusation is true.  To understand what the opposite of that system entails, look no further than Libya, North Korea and Mubarak’s Egypt.  You are advocating, without even understanding it, that all of the power be vested in one arm of government.  It’s clear you didn’t work in the criminal law Emily and the Herald Sun is about the extent of your intellect.

      Reply

    • James1 says:

      12:23pm | 28/02/11

      You either didn’t read the story, or missed the point entirely.

      The situation as it stand now is this: if an amount of drugs is found in a person’s house (or car, or whatever else), even in the absence of any other evidence, it is assumed that the person is guilty of possessing it.  Also, if that amount is over a predetermined weight, that person is presumed to have been intended to sell it.

      If we do away with this, it will essentially make it impossible to prosecute dealers, because all they need to do is hide drugs in a communal area - say, their children’s rooms - in order to avoid being able to be prosecuted for it.  As such, the current situation sounds like the lesser of two evils to me.  You are advocating, without even realising it, that any possibility of prosecuting drug dealers be done away with unless they have the drugs in their pocket or hand, and are caught in the middle of the act of selling it to someone else.

      In relation to murdered children, etc, I am not sure what point you are trying to make.  I imagine that if the body of a murdered child was found in a person’s house, they, much like a person in whose house drugs were found, would be presumed to have murdered the child.  Your own logic here is faulty in the extreme.

      As for the stuff about syringes on the street, where the hell did you get that from?  You are making connections where there are none.

    • Gregg says:

      08:51am | 28/02/11

      I doubt that having drugs found in your house is too much different to having a stash of stolen property, proceeds from the last bank robbery or a couple of stiffs buried under the tomatoes for with the latter it’ll be their stage of decomposition that’ll determine when they ceased breathing and if that was well before you became the renter/owner, it’ll not be an issue.

      And I think you’ve started to show your legal understanding Emily when you get as far as:
      ” Now, I realise this makes me sound naïve and idealistic, and perhaps I am, but I have faith that, should my friend be charged with possession, she’d be found not guilty. I would hope that physical evidence, character witnesses and my friend’s own testimony would be sufficient to clear her name. “
      ” Plus, if the case was a serious one being heard before a jury in the Supreme or County courts, an innocent man would have the added safety net of being tried by a jury of his peers. “

      So I do not see any naivety there and it would seem that Miss Vera is having a play with the system as some solicitors are want to do.
      Like she is probably twice Emily’s age and has no doubt been around the traps and knows the scene for her boyfriend is a known drug trafficker so she got what is due for being involved.
      Fortunately her conviction has been upheld.

      For those who feel threatened about the stuffed turkey in the fridge, if you didn’t buy it in the first place, you might want to get suspicious just as if your bloke has decided to close of part of the garage and have some strange lighting in there for it’s probably not to be watching porn.

      Reply

    • Reg says:

      10:20am | 28/02/11

      @Gregg; “For those who feel threatened about the stuffed turkey in the fridge, if you didn’t buy it in the first place, you might want to get suspicious just as if your bloke has decided to close of part of the garage and have some strange lighting in there for it’s probably not to be watching porn.”

      What does that mean?  So he might have set up a darkroom or just be doing funny things with a turkey? Now you have me wondering about those boxes my daughter asked me to store under the steps.

      Trivial other; If you must use pseudo -sophisticated language such as
      “Miss Vera is having a play with the system as some solicitors are want to do.” ... the word is wont. Check it out.

    • Ben Frank says:

      08:59am | 28/02/11

      “Those who would give up essential liberty to purchase a little a little temporary safety deserve neither liberty nor safety”

      and they will lose both, as well as giving away my liberty.

      As for the rebuttable presumption argument, well yes a rebuttable presumption that the elements of the crime have been proved. That is you are guilty until you prove you are innocent. A skunk by any other names smells just as bad.

      Reply

    • Grumpy says:

      09:02am | 28/02/11

      Get over your prejudice. Did you even think before you started writing this? This shows a total lack of knowledge of how the legal system works and why it is the way it is.

      Reply

    • CABAL says:

      09:28am | 28/02/11

      ah -sigh- the drug argument, comes up on the punch from time to time and there are always the same people, some for some against blah blah blah drugs are evil, drugs aren’t evil… and to all this I say…. who the hell cares.

      It supply and demand people, where there is demand there will be supply, it CAN NOT be stopped. It is simply too lucrative a business. (much like arms dealing, a dirty trade that many of the worlds leading nations traffic in every day).

      I don’t see why my fundamental freedoms as a human being should be taken away to prevent something that can’t be stopped.

      “Drug War” what a joke, wars end… this one never will.

      Reply

    • gra gra says:

      09:47am | 28/02/11

      Naive? perhaps, but no more naive than the blinkered mob that post here, decrying the ‘dangers’ of drugs were they to be de-criminalised. People are dying, yes, but they are dying from contaminated drugs. Government control would do away with the frequency of such a situation. The crime rate, especially violent crimes connected with the drug trade, would drop dramatically. Drug gang wars would cease, as would the murder rate associated with those wars. Armed robberies, committed for the sole purpose of obtaining finance for drug deals would also cease. Alcohol is responsible for more deaths than drugs, but was more so when alcohol was ‘prohibited’. That was primarily because there was no government control over quality. As with drugs today it was made in bathtubs and backyards. And therein lies one of the problems.
      Drugs are not expensive. Only the illegality of drugs makes them expensive. Whole regimes would fall if drugs were legalised world-wide, including those groups we are told are ‘terrorist groups’. The countries dependent on illegal drugs for their very existence are numerous and known. We would be better off morally, financially, and in terms of our nation’s health if we legalised drugs, supervised the use of drugs, and gave developmental assistance to those nations which are generally in their present condition because we, and other similar nations, have deprived them of their natural resources and then abandoned them.
      Such is the excellent foppery of man.

      Reply

    • Kevin says:

      10:41am | 28/02/11

      gra gra… was that a stammer? J/K. I have a nephew in Sydney with just such an affliction.

      Great contribution to the debate, you cover most of the points I feel strongly about with excellent clarity.

    • iansand says:

      09:48am | 28/02/11

      There is an interesting story somewhere in here about the impact of the Victorian Charter of Human Rights.  It’s a pity it was not allowed out to play.

      Reply

    • Kevin says:

      11:10am | 28/02/11

      I suggest you read the judgment of the Court of Appeal case.
      The key issue centred around the definition of “possession” in the Drugs, Poisons and Controlled Substance Act 1981 (Vic).  Under that definition, the owner or occupier of premises on which a substance is found is deemed to be in possession of the substance “unless the person satisfies the court to the contrary”.
      The point in issue was whether the phrase “unless the person satisfies the court to the contrary” imposed a legal burden or an evidentiary burden on the accused.  (If an evidentiary burden, then the accused simply has to raise some evidence that they didn’t know the drugs were there and then it is up to the prosecution to prove that in fact the accused did know the drugs were there).
      Section 25(1) of the Charter states “[a] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law”.
      Section 32(1) of the Charter states “so far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights”.
      The argument in the appeal case was that the Charter required that the phrase “unless the person satisfies the court to the contrary” should be interpreted as imposing only an evidentiary burden.  However, the court rejected that argument and found that it imposed a legal burden of proof on the defendant.
      In other words, the Charter had no impact on the outcome of the case.

    • iansand says:

      12:05pm | 28/02/11

      Which could, perhaps, be the basis of the appeal to the High Court?

    • Im innocent. Youre not! says:

      09:49am | 28/02/11

      Yes, make it easy to plant drugs on people and Police wanting convictions and corrupt business people wanting to get rid of opposition will happen here, just as it does overseas with blashemy laws….
      We have covert cameras. computers mobile phones and phones that can be bugges. Why nor use them instead of making excuses? Too difficult to find an innocent party guilty? They cant even get speed camera operations right in law, so they changed the measurement laws to reflect that. Now you suggest this? What are you smoking….

      Reply

    • James Waites says:

      10:00am | 28/02/11

      I am completely grossed out that there are people in this day and age in our society can be so naive as to think like this (I refer to the author of this article) and that online publications are so desperate for copy as to publish such a fatuous and ill-informed article.

      To pick drug use out of the many crimes and turn the law on its head - for what purpose? By way of response, some readers cite the insidious nature of alcohol - which, it’s true, does more damage to individuals and families and our society as a whole - and you have no problem with that? Personally am grossed out by cigarette smoking. it seems to pointless - no high - and people are wrecking their heath - at a greater cost to society than all the illegal drugs put together. What if I suggested that smokers be denied heart by-pass operations or other forms of tax-supported healthcare? It’s as valid a call as yours, isnt it?  Or you don’t get allowed into emergency because the driver of your car was drunk when he or she ran you into a tree - and all you did was not count the number of drinks he or she drank at the pub while you were together? Just lie on the street and die.

      Loosen up honey - the great crimes are committed by countries (unjustifiable wars); and white collar criminals who ruin the lives of thousands in one fell swoop when they wipe out whole pension funds due to their greed - etc etc.  You think illegal drug uses are lower forms of life than this?

      Where do you put gambling on your scale? It’s addictive to many, but legal, and causes enormous destruction? To individuals and families.

      Almost every society in the past two thousand years - all across the world - has had some form of drug use for recreational and often spiritual use as well. Liker peyote among the indigenous populations of Centeral America. A bit of pot, a tab of acid, a shot of speed, a snort of heroin - big deal. Life is shit and short - aren’ t we allowed an occasional outlet? What if we don’t care for alcohol or shopping or texting/tweeting? All are harmless recreational pursuits that can turn dangerous a user becomes dependent.

      Our society has thousands of drugs - and some you wouldn’t even consider to name - like narcissism, anger (road rage), sex addiction and greed. And in your case Miss Goody-Two-shoes - ‘self-righteousness’!

      Only a tiny random handful of so-called drugs are illegal. And it’s not entirely logical why.

      Go out and do some living. When you do meet a few heavy duty drug addicts - take some time to talk to them and find out how they came to this predicament. You will in almost all cases find people who have not enjoyed protected, privileged upbringings (instead poverty, domestic violence, homelessness, lack of education). Most are trying to deal with pain of some sort in their lives. And most would rather be clean.

      The answer is teaching kids from the earliest age who to live balanced (and compassionate) lives. And the best way to to this is by way of example. One day, the form of judgement/justice you propose here is likely come back and turn you into its (innocent?) victim. Maybe that will be the day you open your eyes and see the world for what it is - and the people who live in for who they are. Of course that day of understanding could come earlier of you got off your high horse.

      Oh and by the way, the drug users you hate (the ones you see on the streets) are the poor ones. There are plenty of lawyers, doctors, nurses, police,and sports heroes who use illegal drugs recreationally. In most cases it has no negative effects on their lives or their work - and some, a statistical inevitability, have big habits - and need (not punishment) help!

      Even politicians and their staffers? Journalists? If you don’t believe me - explain to me why yellow containers for used syringes are installed in the toilets of Parliament House in Canberra?

      I would love to know what you get up to in your down time.

      Reply

    • Aaron says:

      10:07am | 28/02/11

      I just want to make comment on some of the comments posted thus far.

      You are all entitled to your opinion, and to share that with everyone here, that is the purpose of this site.  This issue is obviously a contentious one, and people (including Emily) do get passionate about expressing their views.  However, that does not give anyone the right to personally attack Emily, or anyone for that matter.  I disagree with Emily’s point of view on this topic, but am more disturbed by the posts that seem to make comment on Emily’s intelligence or ability as a lawyer/journalist.  The fact that she even completed a law degree should be proof enough that she is not stupid.  If you are truly the better educated, highly intelligent and know-it-all people that you make yourself out to be (apologies to those who have made some positive responses either for or against Emily’s argument, which seems to be most of you), then perhaps you should put forth a reasonable rebuttal, rather than resorting to personal slander.  How smug you must feel attacking Emily behind your nice cosy alias.

      Once again, this is not directed to the majority of you, only those who fit the description above.

      Reply

    • Clare'sCousin says:

      11:42am | 28/02/11

      Hear, hear. Great piece, Emily.

    • Baal says:

      01:34pm | 28/02/11

      Completing a law degree is not proof of intelligence, it only proves your ability to study and complete assesments to at least a pass level.
      However expressing an opinion like the one she has shows an amazing amount of ignorance and people would expect more from a law student.
      That being said maybe she specialised in sudying the law of torts or property law and never got past criminal law 101 which might explain her ignorance.

    • Aaron says:

      09:36pm | 28/02/11

      @ Baal

      You speak of ignorance.  Ok sure, completing a degree is not proof of intelligence. The ability to study and complete assessment tasks to at least a pass level?  pff… yeah I mean all of us can do that right?  No intelligence required there.  Hell why don’t we all just go down to uni, read a few law books, knock over a few exams and pick up our meaningless scroll of paper on Monday?  While you’re powering through those trivial books that make up the very foundation of our society, perhaps you would want to take a quick look in a dictionary and look up the meaning of the word ignorance.  Then in 100 words or less describe how it applies to your previous post.

      So what is intelligence then?  Is it to put forth an opinion that makes everyone happy, and get a bunch of posts saying “Oh yes I like you, you have the same opinion as me” or is it to challenge those ideas and get people thinking/talking about it?  Emily is entitled to an opinion; you do not have to agree with it.  As I have already mentioned, I do not share her opinion, but I respect her for putting forth her own opinion, probably knowing that she would get a response like this.  Not to mention that there is no right or wrong answer in an opinion piece, as it is just that, an opinion.

      If reading opinion articles boils your blood so much that you feel you must personally attack the writer to get your own opinion across, maybe you should start listening to 3AW instead.

    • Apropo says:

      10:10am | 28/02/11

      Finding a chap innocent once, when he’s guilty, will be sorted in time. The fact is if a moron, selling drugs, is found to have had drugs again, in his possession, and its proved the second time, he should also be presumed to have been guilty the previous time, and be sorted appropiately. It may happen behind the scenes, and an appropiate sentence handed out. Finding him innocent allows his criminal activity to be expanded and ultimately caught anyway. That is if the prosecutors magistrates ,and Police are doing their jobs. Innocents will be found innocent by this and the guilty properly dealt with. I still wonder about Indonesain courts…

      Reply

    • Zaf says:

      10:25am | 28/02/11

      “Although, as my local streets are in the inner-city suburb of Richmond, I’ll continue to walk with my eyes trained to the ground to avoid any stray syringes. “

      What you need is an injecting room.  That hugely reduced the number of needles found on the ground in Kings Cross and Darlinghurst (NSW) - which made the streets demonstrably safer for everybody. 

      Otoh, I don’t know why you thinking locking up a few junkies would make you safer.

      Reply

    • Leto says:

      01:13pm | 28/02/11

      Or she could try wearing shoes.

    • dw says:

      10:55am | 28/02/11

      I was once detained for three days in a European prison for walking past a shop that had been robbed. I had no way to prove my innocence.

      After ransacking my unit and car and not finding anything, I then had to pay the police on my release - I’m not quite sure what for - but I didn’t ask.

      Guilty until proven innocent is a dangerous path to go down as it can appeal to the darker side of the police. I, for one, wouldn’t feel safer walking the streets at night with that kind of justice system lurking in the background.

      Reply

    • Ben Gray says:

      11:01am | 28/02/11

      “I appreciate the high standard of human rights we enjoy in Australia just as much as the next person. But when it comes to the possession of illegal substances, I think it’s better to be presumed guilty rather than innocent, even if it intrudes on our basic right to a fair trial.”
      It doesn’t sound like you DO appreciate the standard of human rights we enjoy. You might think the presumption of innocence is a quaint idea, but I quite enjoy the fact that the police can’t charge me with something I didn’t do and then have me attempt to prove I didn’t do it.
      A quick look at the history of corruption inquiries into the police in this country over the last 50 years will show you why giving them the power to lock you up until you can prove a negative is a completely idiotic idea.

      Reply

    • Markus says:

      11:43am | 28/02/11

      Yep, it just sounds like the OP just has no issue with giving up other people’s human rights.

    • Luce says:

      11:03am | 28/02/11

      Wow.. This is just another example of how short sighted this country’s drug policies are.  Yes, drugs are a problem, but making the punishments harsher is not the solution.

      Drugs themselves are a health problem, not a criminal problem, and should be treated as such.

      Crime comes into it when there is a black market which has the potential for exploitation by organised crime groups, leading to violence, not caused by the drugs’ affects on people, but by the people running the drugs protecting their territory and produce.

      I don’t profess to know the solution, but there must be something more effective then the regular knee-jerk reaction of Australian policy makers, which is to ban everything.

      Reply

    • Rob says:

      11:15am | 28/02/11

      You know Benjamin Franklin may have had it right

      “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

      I agree there’s supply and demand, so the usage isnt going away. Decriminalize it and provide injecting rooms and then muggings and burglaries will shrink and the needsles wont show up on the streets.

      Yes that will make getting drugs easier but at least it wont inflict collateral damage.

      Reply

    • Dale Peterson says:

      11:23am | 28/02/11

      This is yet another example of the absurdity of the Victorian Charter of Rights. Every drug dealer in the state will be barracking for the High Court to use the Chater to uphold their “rights”. I only hope the new state government will repeal the whole thing and be rid of such nonsense forever.

      Reply

    • Troy says:

      11:31am | 28/02/11

      A couple of key points left out in this article: they found not just the drugs, but also $160,000 in cash.  And the boyfriend?  That is, the boyfriend of 18 years!  Her live-in boyfriend of 18 years.  Otherwise known as her de facto. But of course, she had no knowledge he was buying huge amounts of Ice ($400,000 worth) and stashing it in the house together with the cash.  No, just a coincidence.

      Look, this is just an evidentiary matter.  There are plenty of crimes where the onus of proof switches from the prosecution to the defendant, like when they find stolen goods in your possession for example.  It doesn’t mean you don’t get a “fair trial”, it just means the evidence is such that it overwhelmingly points to their being yours so the law requires you to prove they are not.

      Reply

    • Zoe says:

      12:14am | 01/03/11

      Just remember there are blokes out there who live two seperate lives with two wives and two families. With neither having a clue that the other exists. I cant imagine how anyone could possibly not know about something so huge, but this happens .
      Not saying she didnt know about the drugs, but its possible.

    • Troy says:

      12:26pm | 01/03/11

      That may be true, Zoe, but the fact remains the drugs were in her home as was the cash.  To me that is evidence enough to shift the burden of proof to her, to provide evidence they are not in fact hers and she didn’t know about them, don’t you think?  If actual possession of drugs in your own home is not enough evidence to create a presumption that they are yours, I cannot think of what would suffice.  A signed confession?  No, wait, the signature might be forged…

    • Trust the system says:

      11:31am | 28/02/11

      I’m sure an anonymous call to the police about suspected drug trafficking taking place at the residence of one “Emily Portelli” would change the author’s mind quicker than you can say “But officer, I swear…”

      Not that anyone would condone such a waste of police resources…

      Reply

    • baal says:

      05:37pm | 28/02/11

      Before you make the call just throw an 8 ball thru her window or drop some pills in her purse smile

    • Slothy says:

      12:09pm | 28/02/11

      “Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night, knowing it’s that much easier to get drug-affected people off them.”

      “I guess one of the biggest dangers of the reverse onus is that innocent housemates can be inadvertently caught up in someone else’s mess.”

      Translation: Lets forget about those poor students and young people living in share houses (those that are most likely to be innocently caught up by this blatant violation of the presumption of innocence and least likely to be able to afford legal representation capable of putting together an adequate defence). I want to be able to walk my inner city streets at night knowing the effects of my society’s irrational attitude to drugs are safely rotting in a prison cell where I don’t have to look at them.

      Even leaving aside the dubious morality of your argument, it doesn’t make logical sense.  You support these laws because they make it easier to get ‘those people’ off the streets and out of your life. But the danger of these laws is that they will catch out innocent housemates who have no knowledge of the drug use going on in their house.  So, if someone is managing to recreationally use drugs so discreetly and in such small quantities that somebody who lives with them doesn’t realise what is happening, is this really a plague that warrants suspending a fundament rule of law? How much safety are you really buying with your liberty?

      Those that are really doing damage may deserve criminal prosecution and it is the state’s job to build a prosecutable case. But I’m not going to support sacrificing the rights of the already disadvantaged at the altar of convenience.

      Reply

    • St. Michael says:

      12:22pm | 28/02/11

      This is an article that misses the real debate entirely.  And no, the real issue isn’t the legalisation of drugs, either.  That is merely the backdrop of the problem.

      The issue is the adversarial system of criminal justice, which people like Emily and myself are trained into and basically have vested interests in supporting and continuing.  The adversarial system basically is responsible for the wise saw that it is the party with the best lawyer who will wind up winning the case.  In basic terms, it sets out that the judge is an impartial referee in a case, that a party must bring a case on, that a judge can’t inquire past what the lawyers determine—via pleadings—as the “relevant” matters in a case.  A criminal charge becomes a formula that the prosecution must meet and the defence merely has to deny one part of that formula to cause a finding of ‘not guilty’.

      Every issue with “proof of guilt”, or “presumption of innocence” stems from this.

      This has been the English system of justice for roughly 1,500 years or so.  But it wasn’t always that way, isn’t always that way in our society now, and there are others that work in other countries.  For a brief period in English history, the justice system was inquisitorial rather than adversarial; the judge was an impartial investigator rather than a referee.  But the earliest lawyers—men like Lord Coke who actually had very vile pasts—basically massaged the politicians of the time so it became adversarial, a system that benefits lawyers first and no other.

      If you’re wondering why I said “isn’t always that way in our society now”, that’s because we do have an inquisitorial court - one, and one only.  It is called the Coroner’s Court.  If you want to see the inquisitorial system in action (perverted by the fact any consequences that flow from it have to be fought over in the adversarial civil and criminal courts) go and watch a coronial inquest in action.

      As far as I know, Coronial investigations have a very high standard attached to them.  They are usually highly regarded and whilst the policy suggestions they make are often ignored by callous politicians, nobody dares to impugn a Coroner’s findings.  And best of all, the dominant issue is not “what has been proven”, it’s “what is the truth of what happened” (as with an inquisitorial systems).  Lawyers can cross-examine, but they are there to assist the Coroner, and the Coroner has a much freer hand to disallow stupid questions or attempts at destroying a witness.  In true inquisitorial systems, lawyers can’t even question the witnesses themselves - they can merely suggest questions for the Coroner to ask.

      If you want to fix the vast majority of problems with the justice system, make it inquisitorial rather than adversarial.  Of course, to do so you would put much of the current legal system out of a job, which means it will never be done, but that is where the non-issue in this case is coming from, ultimately.

      The article is otherwise only of mild interest to those who haven’t run into the criminal law as applied to drug charges in pretty well every state in Australia.  Most of them have similar such laws, albeit not the idiotic Charter of Rights Victoria seems to have for no other reason than aping the US.  It might be noted that their hopelessly-gummed-up and highly unjust legal system is partially that way because of their own Declaration of Rights appended to the Constitution.

      Reply

    • Squeeze the Middle says:

      05:35pm | 04/03/11

      Isn’t the adversarial system dependent on the advocates serving the court, not their client. Don’t advocates breach their oath by putting the interests of their clients in advance of the interest of the courts.  Perhaps a fund to sue lawyers for racketeering would do the trick?  Or perhaps as Abbott has suggested, popularly elected judges?

    • eddie says:

      12:35pm | 28/02/11

      The presumtoion of innocence is really negated in the magistrates court system anyway, if you are unfortunate enough to be fronting a magistrate on a minor matter - you wont get legal aid to defend yourself, you will get a law student to plead mitigating circumstances but you will have to pay for a breif if you want to plead not guilty. If - in the case of your housemate hiding his stash in the fridge you being home when the cops turn up - it will cost tyou much more in real dollars to defend yourself than you will be fined for a first offence for a minor drug possession charge, trouble is - you will wear the record.  The sad reality is that - in sunny Qld anyway -  the magistrates courts are there simply to process and rubber stamp police charge sheets. The only not guilty verdicts come at great expense to the accused. So if you get charged - it will cost you either way, The real problem is that the cops are not there for truth and justice, if you believe they are you are seriously deluded, they are there for crime and punishment, If they see a crime, they have to find enough evdence to put someone thru court for it. if they only have to go to Magistrates court, the only evidence they need is their word.
      It would be ok if no cops ever told lies or broke the law or had a personal grudge against a memeber of the public but…. that will never be the case.
      We need the presumption of innocence across the board, and to remove it simply to make it easier for the police to convict people is the first step towards a police state.

      Reply

    • Steve says:

      12:54pm | 28/02/11

      Drug Activists have said this for years, it’s about time someone took a stand.

      Let me tell you a story of my experience of the law’s failures.

      Many years ago, I visited a friend at his Girlfriends parents place.  The cops come to the door a little while later and search the place.  They find my bag and ask who owned it.  I said I did, without fear because I knew I had opened it 5minutes earlier and nothing illegal was inside.  Well you should of seen my face when they pulled out all the drugs…  I get charged for drugs I didn’t own about.  The cops didn’t finger print the bags (I’m guessing they did and didn’t find my prints so they hid the real results) and I was convicted.  After the court hearing, the girls parents thanked me because they put them there since if he got busted again he was going to jail….  YES!  They admitted planting the drugs on me so they’d avoid jail.  ..Twice this has happened to me, and twice I’ve pleaded innocent and twice I’ve lost in court.  Honestly you’re kidding yourself if you think lack of knowledge or finger prints or dna will work.  The bet is you’ll be convicted no matter how innocent you are.

      Come on, the laws are seriously flawed for examples like I just gave.  Cops couldn’t careless, as a results the innocent are victimised by the police & create hatred in the community (and they wonder why they’re bashings have gone up over the years)

      Convicting me did nothing, proved nothing, helped no one but the guilty and didn’t improve society one little bit.  It is time to get real and be honest how much these laws ruin lives….the Law ruins lives more than the drugs themselves!

      No one in the media questions the Police media release saying “Trying to stop drug dealing in a suburb police raided 56 homes with 18 people being charged, 3 in one house” ...  Wait what?  56, yet only 16 houses had illegal substances?  Come on!  That means 40 houses, had either casual users that harmed no one, simply knew someone, or completely innocent.  Does no one see this as being socially destructive?  It ruins the community and for what benefit?  What did we get out of it?  All that would of happened is some hate the police more and others paid more for their drugs for a week or two.

      This issue you’ve described Emily goes way beyond simple “innocent until proven guilty” but in fact runs to the very core of how law enforcement operate.  There is a much bigger picture here, which I’m sure Ms Momcilovic is aware of.

      Police bring in Dogs to sniff out MDMA or Meth, so the drug users switch to Fantasy & LSD which are more dangerous but odourless.  This is another example of how the laws themselves ruin lives.  Wake up PLEASE!!  For the love of God please see the reality before you…  It’s staring you in the face you only need to open your eyes.

      The reality is like Prohibition on Alcohol, this Prohibition on Drugs can’t be won either.  So lets stop ruining lives with these out dated laws and look for real solutions to the problems we face.

      Reply

    • AnthonyG says:

      06:15pm | 28/02/11

      You have nice mates.

    • dash says:

      01:01pm | 28/02/11

      the erosion of the basic principle of our legal system should never be allowed. prosecutors have resources and technology at their disposal that should allow them to gather evidence… and if, such as in this example, they cannot get the evidence they need to prove guilt, then they should wait, and keep waiting until they do to prosecute someone. it is too easy to just point the finger and increase the rate of conviction to make it look as though the police (or other bodies) are justifying their budget allocation. and although i imagine cases similar to the above are rare in comparison to others, and that they would put serious criminals in gaol, i would rather have drug dealers go free through lack of evidence than have an innocent person imprisoned from no evidence.

      In responce to St. Michael… you make a good case for a change in the legal system… but i fear you and i will never see the day a fair legal system is implemented, rather than dramatic courtroom displays of legal prowess

      Reply

    • LC says:

      01:21pm | 28/02/11

      I appreciate the high standard of human rights we enjoy in Australia just as much as the next person. But when it comes to the possession of illegal substances, I think it’s better to be presumed guilty rather than innocent, even if it intrudes on our basic right to a fair trial.

      This is quite possibly the stupidest and contradictory paragraph I’ve ever read ouside of reader comments. You can’t remove the presumption of innocence one crime and leave the rest alone. You change the whole system to presume guilt, or you don’t. If you don’t like it,

      Would you like it if the police barged into your house, arrested you, charged you with cocaine possesion after puring sugar out of it’s container into lines and taking a photo of it? Under what you are proposing, it’s your job to prove it’s not coke.

      If so, I’ll happily arrange your move to China or Singapore.

      Reply

    • LC says:

      03:07pm | 28/02/11

      Apologies for the spelling and grammar error littered post, I was in a hurry.
      To add to it:

      “It effectively gives the accused person the benefit of the doubt, based on the idea that most people are not criminals. “

      One of the most basic principles of our legal system (and the reason the burden of proof is where it is) is that it’s better to have a guilty person walk free than have an innocent person punished. These laws fly right in the face of that principle.

      “Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night, knowing it’s that much easier to get drug-affected people off them.”

      “Those who would give up a little liberty, to gain a little security, deserve neither and lose both.”
      - Benjamin Franklin.

    • Mayday says:

      01:35pm | 28/02/11

      Some research please.

      “Our justice system, like every other version of it, is imperfect and constantly evolving, but it’s the best we’ve managed to come up with in over two million years, so I figure it’s due some credit. “

      Please get your basic facts right, modern humans have been on this planet between 100,000 and 200,000 years.
      Lawyers have been around a lot less and from the gist of your argument I wish they were extinct!

      Reply

    • Terry Wright says:

      01:37pm | 28/02/11

      If any other crime was treated this way, there would be bedlam. Even murder and child abuse doesn’t allow the fundamental structure of our laws to be changed.

      It’s called drug hysteria and I see that some here are guilty of it.

      And stop with the personal stories. Empirical evidence on this subject has been trumped by careful, quantified research too many times. Yes, hospitals are full of sick people, mental health wards are full of people with mental health issues and ERs are full of emergency cases. That’s where people with health problems go. Also, if your mate’s next door neighbour’s cousin’s best friend smoked too much pot in their 20s and is now 10 cents short of a dollar, that is not proof that all drug use leads to catastrophe ... they are in the minority.

      The simple fact is that most drug related problems in society are the result of the very laws that are meant to stop drug related problems. Crime, violence, overdoses, ruthless criminals, ruined families, drive-by shootings, poverty etc. are caused mostly by drug prohibition, not the drugs themselves.

      Why have we allowed the insatiable need to stamp out drug use/selling to become so vitally important that we are prepared to forgo basic human rights? The “War on Drugs” mentality is arguably, the most destructive man made creation ever. The carnage includes millions of deaths and those who have been negatively affected by it, runs into the hundreds of millions. The real cracker though is that the “War on Drugs” has not reduced drug use, drug dealing, drug harm or drug crime one iota. Yet, governments continue to spend countless $billions because it’s “drugs”.

      Why is it that the issue of illicit drug use: can change such a vital part of our legal system while overlooking murder, rape and theft, give police extraordinary powers similar to fighting terrorism, wastes $billion in government spending without ever once reaching their goal, allows politicians to make scientific claims without a scrap of evidence, removes the need to check facts before making policies, exempts politicians from being challenged even when they straight out lie, regularly attracts harsher sentences than serious or violent crimes, allow the government to spend $millions on advertising campaigns that never work, fill our prisons with non-violent offenders, encourages the media to mislead it’s readers/viewers using urban myths and mass exaggeration, creates the laws responsible for the most profitable black market on earth, produces tougher laws each year while snaring more and more innocent people, creates tighter regulations that affects millions of law abiding citizens just to target a tiny minority (who get around the restrictions anyhow) etc. etc. etc.

      Any other issue that was acted on so recklessly and with such a dismal outcome would have many politicians being forced to resign, shamed by the media or maybe even charged with some sort of crime. But since it’s “drugs”, they can say and do as they like.

      Reply

    • David LD says:

      01:59pm | 28/02/11

      Save yourself the wordcount and just admit that you want us all to live in a police state where everyone is assumed to be guilty, just as long as you’re part of the exempt over-class.

      What we do without people cheerleading for authoritarianism via most of our major media outlets everyday?

      Reply

    • stephen says:

      02:56pm | 28/02/11

      Don’t women go to the fridge 8 times a day ?
      Hell if a lass don’t know whats in her fridge, she don’t know whats in her bed, in which case she should get done fer both.

      Reply

    • Love Liberty, Hate Drugs says:

      04:08pm | 28/02/11

      The PYT with friends in News corp said:
      “Perhaps it’s worth sacrificing a small liberty to feel a bit safer walking the streets at night, knowing it’s that much easier to get drug-affected people off them.”

      Someone of historical import (Benjamin Franklin) said:
      “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety”

      I’m with Ben.

      Reply

    • Squeeze the Middle says:

      02:58pm | 04/03/11

      Even if you’re with News Corp.  This ain’t no small liberty.

    • Terry Wright says:

      04:52pm | 28/02/11

      It seems that most people agree ... most drug laws are too harsh compared to other, more serious crimes. Ten years ago, most comments would be in favour of harsher laws.

      This change in attitude reflects the push by drug law reformists and scientists to expose the damage caused by drug prohibition. In short, the “War on Drugs” has caused more problems than it’s fixed. This is now universally understood but why do the government, politicians, anti-drug nutters and conservatives keep plugging away?

      How many people were scorned or mocked because they wanted a sensible drug policy based on evidence and reality? There are dozens of groups who have challenged our drug laws over the years but were written off as radical or dangerous e.g. The Greens. Websites like The Australian Heroin Diaries (http://theaustralianheroindiaries.blogspot.com) or groups like Law Enforcement Against Prohibition kept putting up valid reasons for change only to be criticised.

      Most amazing of all though was that we were dictated to by the US for so long. And we blindly followed along. After a $trillion drug war, the US has more prisoners than any other country on earth but is still the world’s largest consumer of illicit drugs. You would think that we would look elsewhere for our drug policy?

      Reply

    • Dave Mac says:

      05:00pm | 28/02/11

      Do people who take cocaine realise how many people are murdered for their habit?

      Every time they snort, they should think of the blood being spilt for them.

      Reply

    • John Terry says:

      07:27pm | 28/02/11

      Or the government could think of the blood being spilled enforcing their drug laws. If cocaine were legal there would be no drug murders in Mexico as an illegal trade would have never developed there.

    • Squeeze the Middle says:

      02:53pm | 04/03/11

      Meanwhile our own governments profit from collecting taxes from movies, music etc that make light of drug use.  Stuff that, at least we’ll get a lawyer off the streets and cash in on her property, right? Double standards anyone.

    • Squeeze the Middle says:

      05:30pm | 04/03/11

      What about the series on TV at the moment about a coke snorting barrister: Rake. Yeah.  So will jailing Momcilovic counter balance that influence.  Anyone?

    • Victor H Pigott says:

      09:02pm | 28/02/11

      This is a very dangerous argument for if we accept its validity than we accept the potentiality for it to be transferred to other crimes.  The presumption that the Crown must prove an accused person guilty is one of the greatest safeguards for innocent accused of the common law adversarial system that we Australians have inherited from England.  As the author of this article correctly points out changing the onus of proof means that innocent people not only end up before Courts but have a much harder job of proving their innocence.  For instance, if an innocent citizen is found during a Police raid at a location where drugs are also found, how do they prove they were not in possession of the drug?  While it’s all very well for Emily to hope that a properly instructed jury would acquit, I doubt if the innocent accused would agree after they have been put through the emotional ringer of the Australian criminal justice system and paid out $20-30 thousand to lawyers. More significantly, these kind of changes to the law, signify the beginning of the end of the adversarial system and its replacement by the European inquisitorial system in which the bias is against the accused. I suggest that interested readers research the French and German legal systems and ask themselves, is this what I want for Australia?

      Reply

    • Nick Buick says:

      07:24pm | 24/03/11

      You must be on drugs.

      Why would you want to dispense with justice in this, of all offences? As it is, drug charges carry the toughest sentences in the country bar none. In fact a drug trafficking charge carries a greater penalty than murder (due to the federal sentencing of the offence - which has a mandatory non-parole period of double that of a state offence, such as murder). Considering the relatively benign nature of drug dealers compared to other criminals (violent criminals, such as rapists and murderers, as opposed to your friendly local weed dealer) it is insane to suggest that these people should be denied equal access to the justice system. If anything, they deserve more rights than other criminals - not less.

      Reply

    • dmmaseoseoseo says:

      10:52am | 13/12/11

      Awesome share! Thank you very much

      Reply

    • Roselyn says:

      08:40pm | 07/02/12

      I find it aazming that you will go to all that trouble to put your­self in a mind altering state.  First you might have a “panic attack”, severe head­ache, nervous, shacky, anxious for 20 minutes of being really stoned.  Yeah, sounds like a really great time.  Why don’t you just figure out what is hurting you so badly inside your head that you would go to all the trouble.  And if you don’t want to exper­i­ence all those side effects, you only need to become a phar­macist and , weigh,measure, mix, blah, blah, blah.…sounds to me like people with serious issues.  There is a reason that it will soon be illegal.  This isn’t marijuana, it’s a man made syn­thetic sub­stance that you have no reason to poisen your­self with.  Unless.…you are in trouble with the law, for abusing your­self already with other sub­stances, then you resort to a “blend” that causes such aggrav­a­tion.  Seems to me like you might want to use your time finding your­self with healthier choices.

      Reply

    • John says:

      11:46am | 24/05/12

      Emily Portelli = ignoramus

      Reply
 
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