Momcilovic v The Queen

• Jurisdiction: Australia Federal only
• Judge: French CJ,Gummow J.,Hayne J.,Heydon J.,Crennan,Kiefel JJ.,Bell J.
• Judgment Date: 08 September 2011
• Neutral Citation: [2011] HCA 34,2011-0908 HCA A
• Court: High Court
• Docket Number: M134/2010
• Date: 08 September 2011

Vera Momcilovic

Appellant

and

The Queen & Ors

Respondents

[2011] HCA 34

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ

M134/2010

HIGH COURT OF AUSTRALIA

Momcilovic v The Queen

Constitutional law (Cth) — Inconsistency between Commonwealth and State laws — Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘Drugs Act’) — Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) — Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime — Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) — Judicial power of Commonwealth — Constitution, Ch III — Functions conferred on State courts by State law — Compatibility with role of State courts under Ch III — Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) provided ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’ — Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right — Declaration had no effect upon validity of provision or legal rights of any person — Nature of task required by s 32(1) of Charter — Whether s 32(1) reflection of principle of legality — Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court — Whether s 36 confers judicial function or function incidental to exercise of judicial power — Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) — High Court — Appellate jurisdiction — Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) — Courts — State courts — Federal jurisdiction — Diversity jurisdiction — Appellant resident of Queensland at time presentment filed for offence under Drugs Act — Whether County Court and Court of Appeal exercising federal jurisdiction — Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law — Particular offences — Drug offences — Trafficking — Possession for sale or supply — Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary — Section 70(1) of Drugs Act defined ‘traffick’ to include ‘have in possession for sale’ — Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking by that person — Whether s 5 applicable to offence under s 71AC on basis of ‘possession for sale’ — Whether s 5 applicable to s 73(2) — Whether onus on prosecution to prove appellant had knowledge of presence of drugs — Whether onus on appellant to prove not in possession of drugs.

Statutes — Validity — Severance — Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter — Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette — Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes — Interpretation — Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society — Whether s 7(2) relevant to interpretive process under s 32(1) — Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure — Costs — Criminal appeal — Departing from general rule for costs where appeal raised significant issues of constitutional law — Whether appellant entitled to special costs order.

Words and phrases — ‘declaration’, ‘diversity jurisdiction’, ‘evidential onus’, ‘incompatibility’, ‘institutional integrity’, ‘interpret’, ‘legal onus’, ‘legislative intention’, ‘matter’, ‘possession’, ‘possession for sale’, ‘resident of a State’, ‘right to be presumed innocent’.

Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.

Commonwealth of Australia Constitution Act 1900 (Imp), s 5.

Crimes Act 1914 (Cth), s 4C(2).

Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.

Judiciary Act 1903 (Cth), ss 39(2), 79.

Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.

Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).

Interpretation of Legislation Act 1984 (Vic), s 6(1).

Representation

M J Croucher and K L Walker with C A Boston for the appellant (instructed by Melasecca, Kelly & Zayler)

G J C Silbert SC with B L Sonnet and C W Beale for the first respondent (instructed by Solicitor for Public Prosecutions (Vic))

S G E McLeish SC, Solicitor-General for the State of Victoria with J M Davidson and A M Dinelli for the second respondent (instructed by Victorian Government Solicitor)

S P Donaghue with E M Nekvapil for the third respondent (instructed by Victorian Equal Opportunity and Human Rights Commission)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 8, 9 and 10 February 2011

H C Burmester QC with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 7 June 2011

R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

M G Sexton SC, Solicitor-General for the State of New South Wales and K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 8, 9 and 10 February 2011

M G Sexton SC, Solicitor-General for the State of New South Wales with M L Rabsch intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 7 June 2011

G L Sealy SC, Solicitor-General for the State of Tasmania with S Gates intervening on behalf of the Attorney-General for the State of Tasmania (instructed by Crown Solicitor for Tasmania)

M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA))

M A Perry QC with P J F Garrisson and K A Stern intervening on behalf of the Australian Capital Territory Attorney-General (instructed by ACT Government Solicitor)

M K Moshinsky SC with C P Young appearing as amicus curiae on behalf of the Human Rights Law Centre Ltd (instructed by Allens Arthur Robinson)

1. Appeal allowed.

2. Set aside paragraphs 1–5 of the order of the Court of Appeal of the Supreme Court of Victoria dated 25 March 2010, and in their place order that:

• (a) the appellant have leave to appeal against her conviction;

• (b) the appeal be allowed;

• (c) the appellant's conviction be quashed and sentence set aside; and

• (d) a new trial be had.

3. The second respondent pay two-thirds of the costs of the appellant in this Court.

French CJ

Introduction

1 The main purpose of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’) is ‘to protect and promote human rights’ 1. The mechanisms by which it seeks to achieve that purpose include 2:

• • ‘setting out the human rights that Parliament specifically seeks to protect and promote’; and

• • ‘ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights.’

The rights are set out in Pt 2 of the Charter and include the right of a person charged with a criminal offence to be presumed innocent 3. This appeal, from the Court of Appeal of the Supreme Court of Victoria, was brought by Vera Momcilovic against her conviction for trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the Drugs Act’). Section 5 of the Drugs Act provides that a substance on premises occupied by a person is deemed, for the purposes of the Act, to be in the possession of that person unless the person satisfies the Court to the contrary. The appeal raises a number of issues:

• • Whether s 5 of the Drugs Act should be interpreted, pursuant to the Charter, as placing on a person charged with an offence under the Act involving possession of drugs, only the evidential burden of introducing evidence tending to show that drugs found on premises occupied by that person were not in that person's possession.

• • Whether s 5 applies to the offence of trafficking in drugs created by s 71AC of the Drugs Act.

• • Whether s 71AC is invalid by reason of inconsistency with a provision of the Criminal Code (Cth) (‘the Code’) creating a similar offence with a different penalty.

• • Whether s 36(2) of the Charter, which provides that the Supreme Court may make a declaration that a statutory provision cannot be interpreted consistently with a human right, is valid and amenable to the appellate jurisdiction of this Court.

• • Whether, given that...