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Momcilovic v The Queen

Momcilovic v The Queen

Case [2011] HCATrans 145 7 June 2011

Statutory Construction

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[2011] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M134 of 2010

B e t w e e n -
VERA MOMCILOVIC
Appellant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 JUNE 2011, AT 10.16 AM

(Continued from 10/2/11)

__________________

MR M.J. CROUCHER: May it please the Court, I appear with my learned friends, MS K.L. WALKER and MS C.A. BOSTON, on behalf of the appellant. (instructed by Melasecca, Kelly & Zayler)

MR G.J.C. SILBERT, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, on behalf of the first respondent. (instructed by Solicitor for Public Prosecutions (Vic))

MR S.G.E. McLEISH, SC: May it please the Court, I appear with my learned friends, MS J.M. DAVIDSON and MR A.M. DINELLI, for the second respondent. (instructed by Victorian Government Solicitor)

MR S.P. DONAGHUE: May it please the Court, I appear with my learned friend, MR E.M. NEKVAPIL, on behalf of the third respondent. (instructed by Victorian Equal Opportunity and Human Rights Commission)

MR H.C. BURMESTER, QC: If the Court pleases, I appear on behalf of the Attorney‑General for the Commonwealth intervening, with my learned friends, MS R.M. DOYLE, SC and MR A.D. POUND. (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear on behalf of the Attorney‑General for Western Australia intervening, with my learned friends, MR R.M. MITCHELL, SC and MS C.L. CONLEY. (instructed by State Solicitor (WA))

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS M.L. RABSCH, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))

MR G.L. SEALY, SC, Solicitor‑General for the State of Tasmania: May it please the Court, I appear with my learned friend, MR S. GATES, on behalf of the Attorney‑General of Tasmania who intervenes in the proceedings. (instructed by Crown Solicitor for Tasmania)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR C. JACOBI, on behalf of the Attorney‑General for South Australia intervening. (instructed by Crown Solicitor (SA))

MS M.A. PERRY, QC: May it please the Court, I appear with my learned friend, MR P.J.F. GARRISSON, for the Attorney‑General for the Australian Capital Territory intervening. (instructed by ACT Government Solicitor)

MR M.K. MOSHINSKY, SC: May it please the Court, I appear with my learned friend, MR C.P. YOUNG, for the amicus. Your Honour, since the hearing last time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Momcilovic v The Queen

Details

AGLC: Momcilovic v The Queen [2011] HCATrans 145
Case: [2011] HCATrans 145
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Momcilovic against his conviction for trafficking in a commercial quantity of methylamphetamine. The central dispute concerned the constitutional validity of a statutory presumption contained within the *Drugs, Poisons and Controlled Substances Act 1981* (Vic). This presumption, s 5(1) of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic), deemed that a person found in possession of a quantity of methylamphetamine exceeding 300 grams was trafficking in that substance, unless they could prove otherwise.

The primary legal issue before the High Court was whether this reverse onus provision, which required the accused to disprove the element of trafficking, infringed upon the implied constitutional prohibition against the legislative impairment of the judicial power of the Commonwealth. Specifically, the Court had to determine if the presumption impermissibly encroached upon the traditional role of the courts in determining guilt or innocence by requiring an accused to prove a fact that would otherwise be an element of the offence. A further issue was whether the presumption was consistent with the presumption of innocence, a fundamental common law principle.

The majority of the High Court held that the statutory presumption in s 5(1) of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) was invalid. The Court reasoned that the presumption, by requiring the accused to prove they were not trafficking, effectively shifted the burden of proof for a core element of the offence from the prosecution to the defence. This was found to be an impermissible intrusion into the judicial function, as it undermined the fundamental principle that an accused is presumed innocent until proven guilty beyond reasonable doubt. The Court distinguished this provision from other statutory presumptions that might relate to ancillary matters or require proof of facts that do not go to the core elements of an offence.

Consequently, the High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of Victoria for a retrial.

Orders