Momcilovic v The Queen & Ors [2011] HCATrans 15
[2011] HCATrans 15
[2011] HCATrans 015
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
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 FEBRUARY 2011, AT 10.17 AM
Copyright in the High Court of Australia
__________________
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 friends, MR B.L. SONNET and MR C.W. BEALE, on behalf of the Crown for 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 S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia: If the Court pleases, I appear with MS R.M. DOYLE, SC and MR A.D. POUND for the Attorney‑General of the Commonwealth intervening under section 78A of the Judiciary Act. (instructed by Australian Government Solicitor (ACT))
MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friends, MR R.M. MITCHELL, SC and MS C.L. CONLEY, on behalf of the Attorney‑General for Western Australia under section 78A of the Judiciary Act. (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 K.M. RICHARDSON, for the Attorney‑General for New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor (NSW))
MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia: If the Court pleases, I appear with my learned friend, MR C. JACOBI, on instructions 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 friends, the Chief Solicitor for the Australian Capital Territory, MR P.J.F. GARRISSON, and MS K.A. STERN for the Australian Capital Territory intervening under section 78A of the Judiciary Act. (instructed by ACT Government Solicitor)
MR M.K. MOSHINSKY, SC: If the Court pleases, I appear with my learned friend, MR C.P. YOUNG, for the Human Rights Law Resource Centre which seeks leave to appear as amicus curiae. (instructed by the Allens Arthur Robinson)
FRENCH CJ: Mr Moshinsky, you will have that leave on the basis that we have your written submissions, and you have leave to make brief oral submissions in elaboration if necessary.
MR MOSHINSKY: Thank you, your Honour.
FRENCH CJ: Before we begin, the parties have been advised that Justice Hayne, who is presently recovering from surgery carried out two weeks ago, is expected to be able to participate in this decision on the basis of the written submissions and outlines and the transcript of argument. The parties were asked if anybody had any objection to his involvement on that basis. Thank you. Now, Mr Croucher, is there an agreed order of address?
MR CROUCHER: Yes, your Honour. We had agreed amongst us that the appellant would go first, hopefully for about no more than an hour and a quarter, and then the third respondent, Dr Donaghue’s client, would follow, given that there is an overlap in our positions, for about the same time and that would probably bring us to around lunchtime. Then the first respondent and the second respondent would - I think they were allocated in the order of three hours, which would take us to the end of the day, or perhaps into tomorrow, and then amongst the interveners and the amicus, there would be until lunchtime, or collectively about three hours, they thought, and then half an hour in reply for the appellant, which would use up the two days, on those calculations.
FRENCH CJ: All right. So far as the interveners are concerned, it would be helpful for us to have an indication of the order of their appearances - not now, but perhaps later on, when that has been sorted.
MR CROUCHER: All right.
GUMMOW J: You should not regard yourself as limited to the two days, I do not think, things may emerge.
MR CROUCHER: Thank you, your Honour.
FRENCH CJ: They have a funny habit of doing that.
MR CROUCHER: We saw a missive last night that made us think a bit, your Honours.
FRENCH CJ: There are two other matters. You need leave to add a ground of appeal, I think.
MR CROUCHER: Yes.
FRENCH CJ: That is not opposed, I take it? That leave is granted. I think there is a notice of contention proposed as well, and there will be leave to file a notice of contention.
MR CROUCHER: Your Honours would have received this morning, pursuant to the new Rules, the appellant’s outline of oral submissions. The order in which we propose to deal with the matters is, firstly, the section 109 point, the alleged inconsistency point; secondly, the Charter issues, and then, thirdly, the error in the directions irrespective point.
Could I just go back a step? When coming to the Charter issues, the second issue which we will address, because of the overlap in the positions between Dr Donaghue’s client and ours we propose to adopt in advance what Dr Donaghue says in order to avoid duplication. We will address it briefly and make the points that we want to make briefly and rely on our written submissions otherwise, but we will allow Dr Donaghue, if you like, to develop those points and adopt those. Unless the Court has any objection to that course, we propose to deal with the section 109 point at the outset.
FRENCH CJ: No, you can proceed.
MR CROUCHER: In our submission, there is a direct inconsistency between sections 13.1, 13.2 and 302.4 of the Criminal Code (Cth) on the one hand and sections 5 and 71AC of the Drugs, Poisons and Controlled Substances Act of Victoria, which I will refer to as the Drugs Act if I may, when read together, because those latter provisions alter, impair or detract from the operation of the Commonwealth provisions. You would have seen that the point has come late following, after special leave, because after special leave was granted on the other two grounds this Court handed down its decision in Dickson v The Queen. Of course, we rely principally on Dickson for the propositions which we advance. In particular, in Dickson at paragraph [22] of the joint reasons, these things are said and we say they apply equally to the appellant’s case.
FRENCH CJ: This is (2010) 270 ALR 1 at paragraph [22]?
MR CROUCHER: Paragraph [22], or page 8 of the report. In the first sentence the Court says:
The direct inconsistency in the present case is presented by the circumstance that s 321 of the Victorian Crimes Act renders criminal conduct not caught by, and indeed deliberately excluded from, the conduct rendered criminal by s 11.5 of the Commonwealth Criminal Code.
Just stopping there, in the same way, in this case, section 5 insofar as it operates on section 71AC of the State Act, and indeed in this case in particular, the appellant’s case in particular, was such that the mere occupation of premises on which the drugs were found meant that the appellant was deemed to be in possession of those drugs, which is a crime in itself, possession of such a drug, and indeed it is an element of the offence of trafficking under section 71AC insofar as the trafficking is based on possession for sale pursuant to the extended meaning of trafficking under the Drugs Act.
Therefore, that behaviour merely being an occupation - or that state of affairs merely being occupation of premises on which drugs are found puts the appellant in that position whereas the Commonwealth provisions, read together, which cover the same conduct, including trafficking of the drug in question here, methamphetamine or methylamphetamine, which is the same thing, does not have that affect. Rather, under the Commonwealth provisions the Crown is required to prove beyond reasonable doubt the element of possession of the substance before the question of trafficking can arise.
GUMMOW J: Is there a distinction between the offence and the mode of proof?
MR CROUCHER: Well, there may be, but in this case they merge into ‑ ‑ ‑
GUMMOW J: In this realm of discourse when you are applying section 109, is there a distinction between the offence and the mode of proof of the offence, the constituent to the offence?
MR CROUCHER: Well, not in my submission, your Honour, but it has both effects in this case because what section 5 does on the construction of the first respondent, and I understand the second respondent as well, is that it deems possession to exist, therefore the element of possession is made out simply by occupation of premises on which drugs are found. The only relief from that, on the Crown’s construction, in a case of trafficking or possession, is by the accused proving on the civil standard, the balance of probabilities, that he or she was not in possession.
BELL J: The conduct that is criminalised is in each case the possession of a proscribed drug, relevantly, for present purposes, methylamphetamine. It is not as though the State proscribes as criminal being the occupant of a premises in which drugs are found. That circumstance can be called in aid by virtue of the deeming provision in support of a prosecution for the conduct of possessing a narcotic drug.
MR CROUCHER: That is, with respect, all true, your Honour, but the effect of it is, though, to criminalise that behaviour or that state of affairs because, working backwards, the offence provision, section 71AC, which punishes or proscribes trafficking in a drug of dependence – in this case, namely, methylamphetamine. In this case the form of trafficking alleged is possession for sale. In this case the Crown relies on section 5 which deems a person who is in occupation of premises in which drugs are found to be in possession – so the construction goes.
BELL J: That assists the prosecution to prove the contravention of the rule of conduct that is prescribed, namely, possession of a drug of dependence.
MR CROUCHER: It does, I accept that, your Honour.
GUMMOW J: Is that not then the collision?
MR CROUCHER: Yes. I am sorry, I might have misunderstood your Honour Justice Gummow before. We say that either analysed as a means of proof, which your Honour Justice Bell has been adumbrating, or in the way that I have put it additionally, an element of the offence covering the same conduct, either way, there is a direct collision, in our submission.
GUMMOW J: In Dickson, we referred to the passage you took us to - we referred to Hume v Palmer and Loewenthal. That might be supplemented by what Chief Justice Gibbs said in Winneke 152 CLR 211 at 218, which I think is on everyone’s list. I think Victoria relies upon the last sentence in the paragraph ending at about line 12, “It is difficult to imagine”. Do you see that?
MR CROUCHER: I am being handed it in a moment, your Honour.
GUMMOW J: Page 218. I think Victoria, or one or other of its manifestations, relies upon the last sentence ending at about line 12, “It is difficult to imagine”. Do you see that? But Chief Justice Gibbs went on in the next paragraph to say what may be some significant matters, having regard to what Justice Bell and myself have been putting to you.
MR CROUCHER: Indeed, and on which we rely. We also rely on ‑ ‑ ‑
GUMMOW J: It is, in particular, the third sentence:
If the two laws are made for the same purpose – e.g. if they prescribe substantially identical rules on a particular subject . . . it will be easy to conclude –
and then he refers to Hume and Loewenthal. Then he gives in a contrasting example of McLean, of the shearer who wounds a sheep, there might be a State criminal law about cruelty to animals, I suppose, and a Commonwealth award about conduct of employment activities. That would not be an instance of substantially identical rules on a particular subject. It would be a different subject.
MR CROUCHER: Yes, whereas here, it is plain that it is the same subject, and indeed, when one goes to the Model Criminal Code Officers Report, which was the precursor to the Commonwealth Code provisions, it is plain at page 43 of that report that the view of the officers, which apparently was picked up in the decision to legislate as the Commonwealth did, was a deliberate one not to have a provision like section 5 of the Drugs Act in the Commonwealth Code. At page 43 of that report ‑ ‑ ‑
GUMMOW J: Wait a minute. Where do we find that?
MR CROUCHER: That is behind tab 30 of the appellant’s materials.
GUMMOW J: Page 43.
MR CROUCHER: Page 43, under the heading “No presumption of possession” in the first half of the page. The report says this:
The definition contains no presumption of possession. Provisions which allow courts to presume possession from proof of occupation or ownership of premises where drugs are found, or from other evidence suggesting that the accused might have been in possession of drugs seized by police, are not uncommon in Australian law.
Footnote 50, Drugs, Poisons and Controlled Substances Act 1981 (Vic) section 5, the very provision about which we are here –
Examples in existing legislation impose a legal burden of proof on the accused. These provisions all occur in legislation which makes simple possession an offence. There is no offence of simple possession in the Code –
Just pausing there, there actually became one later on ‑ ‑ ‑
GUMMOW J: Do we know how it came in?
MR CROUCHER: No.
GUMMOW J: It was not the product of any further report?
MR CROUCHER: No, not that I have been able to discover. Then they say in parentheses:
(though of course, offences of possession will be covered in separate health and regulatory legislation). Possession is relevant, however, as an element of the offences of trafficking and manufacture. Since these offences are buttressed by a presumption of intention to sell or manufacture –
Just pausing there, similar to section 73(2) in the State Drugs Act, perhaps not quite a presumption, but a prima facie provision close to it –
based on possession of a trafficable quantity, it would be both inappropriate and illogical to make possession itself the subject of a presumption.
Now, when the legislation that amended the Code was ultimately passed, as I say, a possession offence or series of possession offences were included. Of course, the trafficking offence which we are dealing with now in its various forms were also included, neither of which has an equivalent of section 5. It is plain from the second reading speech and explanatory memorandum that these provisions in the Commonwealth Code were based on the recommendations of this report and other views, but substantially this, and it is plain therefore, it is submitted, that the Commonwealth Parliament can be taken to have deliberately excluded from section 302.4 and related Commonwealth provisions, a provision like section 5.
FRENCH CJ: Might not that be in part explained by an implementation reflected in Part 9.1 of the Commonwealth’s obligations under the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances? In other words, one of the obligations under Article 3 is that:
Each party shall adopt such measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally:
Then you have trafficking, you have the possession or purchase, et cetera. Does it make a difference that these provisions are apparently an implementation of the Commonwealth’s obligations under the Convention and that it does not thereby necessarily address their relationship with State law? The word “intentionally” in the opening words of Article 3 might suggest, on one view, that when they talk about possession, they talk about possession which is intentional.
MR CROUCHER: Well, that is as may be, your Honour, but, in my respectful submission, it cannot be ‑ ‑ ‑
GUMMOW J: You have to read 3.1 with 3.3 of the Convention, do you not:
Knowledge, intent or purpose required as an element of an offence set forth in paragraph 1 of this article may be inferred from objective factual circumstances.
MR CROUCHER: Yes, well, that is so too, but ‑ ‑ ‑
FRENCH CJ: Whether that would support a presumption is another matter.
MR CROUCHER: To answer the Chief Justice’s question, your Honour, if that be so, it did not stop the Commonwealth from including a reverse onus provision at the second stage of the trafficking question, because the way their provision works is to say, you must prove beyond reasonable doubt, Mr Prosecutor, the element of possession, but once you have proved possession beyond reasonable doubt in a specified quantity beyond a threshold, then there is a legal presumption, or rebuttable by a legal standard of proof by the accused, that one had it in possession for the intention of selling.
That would suggest that that cuts across the point that your Honour the Chief Justice has made. On the other hand, as I say, that passage that I have just read from page 43 of the report makes it clear that the officers deliberately left a reverse onus at possession stage from this legislation – or left it out of this legislation. Indeed, by reference to the very provision about which we are speaking, section 5 ‑ ‑ ‑
BELL J: But is that not explicable on the basis that the officer’s committee was not proposing that the Commonwealth would legislate to criminalise the simple possession of a controlled substance or drug of dependence or however it is described. The point that they were making was that if, with respect to a trafficking offence, one included a conventional reverse onus provision with respect to possession, combined with a provision of the character that one finds in 302.5 of the Code, the legal burden on the accused with respect to the possession of a quantity in excess of the trafficable quantity, one would ‑ ‑ ‑
MR CROUCHER: It is to go too far.
BELL J: Indeed. So, that is what the discussion at page 43 is about and once one sees that the Commonwealth, for whatever reason, chose to enter the field of proscribing the possession of drugs, one sees a different landscape.
MR CROUCHER: But the fact of the matter is, though, that when the possession charges – provisions – came in as well, what you had was still true to that opinion expressed in the report that neither possession nor trafficking based on possession had the reverse onus. So true to the view that it would be both illogical – inappropriate and illogical to have such a provision like section 5, there was no such section 5 in either the possession provision in the Commonwealth Code or which ultimately came to be enacted or the trafficking provision with which we are concerned here.
The reason we have raised all this is to meet the argument that is put against us, that whilst generally it is the case that provisions like section 300.4 of the Code, which is an attempt plainly to avoid at least indirect inconsistency between the State and the Commonwealth laws, is not effective to achieve that in cases of direct inconsistency or direct collision - see Justice Mason in Credit Tribunal, as he then was, and see Chief Justice Gibbs in Metwally. It seems to have been accepted as well in Dickson v The Queen most recently by this Court.
But then those against us go on to say however, you can look at the intention of the legislature, the Commonwealth legislature, in determining what the scope of all this was to be in some fashion, despite these statements of principle that provisions like 300.4 will not save a direct collision. Nevertheless, they go to the so‑called intention of Parliament but when you look at page 43 of that report and then look at what followed it could not be clearer that the Commonwealth chose not to do that because, put simply, they thought it was to go too far.
That being so, there remains a direct collision between the State provision and the Commonwealth provision, which is not saved by a provision like section 300.4. That is the argument. It is on all fours with Dickson, save this point. Of course, in Dickson, as the Court said – I think it was at paragraph 37 of its reasons in the end – that, whilst there were clauses like 300.4 in various provisions of the Code that they were considering, including the substantive theft provisions, there was not one in the conspiracy provisions and therefore that did not need to be decided. But we say the point we have just made about the intention of the Commonwealth legislature is a complete answer to that.
GUMMOW J: There is some reference in some of the materials, I think, to a desire on the part of the Commonwealth to legislate comprehensively to cover what would otherwise be cracks or gaps.
MR CROUCHER: Yes. I cannot see the cracks or gaps, frankly.
GUMMOW J: What are the cracks or gaps? Can you find them?
MR CROUCHER: No, with respect. I know what your Honour is referring to and that is definitely said, but I fail to see them, frankly.
GUMMOW J: Under the old system. Cracks or gaps in the old system, so you have to ‑ ‑ ‑
MR CROUCHER: All that has happened, as I see it, with respect, your Honours, is that since November 2005 the Commonwealth provisions have just had a wider reach into where the State provisions once were, and that is why we get the direct collision that we get in this particular case because, as well, of the particular aspect of section 5 of the Drugs Act. We are not arguing for anything broader than the case at hand, of course. We are dealing with this issue in this case on these facts insofar as there is direct collision. So, no, in answer to your Honour’s question.
KIEFEL J: Is there any statutory provision in Victoria respecting the legal burden of proof with respect to the elements of an offence on the prosecution or do prosecutions function under the common law presumption?
MR CROUCHER: They generally function under the common law presumption. There is a provision in the Drugs Act, which has not been referred to by any of the parties on this appeal – I think it is section 114 from memory, or round about there - which received attention; it might be 105, but I will come back to it in a moment – which was considered by the court below in argument but did not make its way into the judgment. Everyone agreed and concluded in the end that it had no effect in this case.
BELL J: Are you referring to section 104 dealing with the burden of proof with respect to matters of exception, qualification or defence?
MR CROUCHER: Indeed. I said 115, 105, but it is 104, your Honour.
GUMMOW J: Section 104?
MR CROUCHER: Of the Drugs, Poisons and Controlled Substances Act. But it has no application in this case, in our submission.
KIEFEL J: As a matter of statutory construction do you infer from that that that is the extent to which it was intended that the common law presumption be derogated from?
MR CROUCHER: Yes, so that insofar as it has no application to section 5, we fall back to the common law. Then we have to look at the words of section 5, which we will come to, of course, in the Charter and other arguments. We say in any event that it is at best ambiguous and, given the principle of legality that you could not go beyond the view that it is only an evidential onus anyway, but we will come to that shortly, which of course is going beyond the common law provision. The common law position would be that there is no evidential onus.
KIEFEL J: But for present purposes, with the exception of section 104, the position is in the first place the same as between the Commonwealth and Victoria in relation to the prosecution’s burden of proof.
MR CROUCHER: Yes. Of course, we accept that section 5 attempts to alter that but, as I say, when we come to the other grounds – at least for the purposes of this argument at the moment we are accepting the construction put on section 5 by the first and second respondents – namely, that it casts a legal onus of disproof on the balance of probabilities on an accused on the question of possession.
The point, I should say though, on the section 109 argument would not matter if it were the case that our construction which we put under the Charter argument, and as a matter of construction anyway on the ordinary rules, that section 5 is only an evidential onus as opposed to a legal onus, would not change, apart from degree, the section 109 argument. Why - because, of course, there are at least three shades of meaning here. The ordinary position is that the Crown bears the onus of proving beyond reasonable doubt every element of the offence. The Commonwealth provision does exactly that, at least insofar as possession is concerned, and it is backed up by the express provision for that in section 13.1 and 13.2 of the Commonwealth Code.
A second position would be – and that is the one for which we plumb when we come to the other grounds – that section 5 creates merely an evidential onus on an accused in respect of possession such that if there is evidence raised in the case by one means or another then it is for the Crown to prove beyond reasonable doubt possession.
The third position is that which the Crown plumbed for, which is that section 5 creates a legal onus of this proof on the civil standard of the balance of probabilities on an accused. Either the second and third construction that I have just put – or the second and third versions – still engage the section 109 point, but with all the more force if the Crown’s construction is right. Perhaps the point does not need to be belaboured, but the way ‑ ‑ ‑
GUMMOW J: What is the relationship between section 5 and section 104 of the Drugs Act of Victoria?
MR CROUCHER: What is the relationship? It has no impact. It does not fall within – the provisions of section 5 do not fall within the terms of the exception, excuse and so on, mentioned in 104. As I say, that was the position, I think at least, of the Attorney for Victoria and I think the Crown below, but anyway, it was not addressed in the judgment. Another phrase that is sometimes used in these direct inconsistency cases is an area of liberty designedly left ‑ ‑ ‑
FRENCH CJ: As 104 might apply to questions of authorisation or licence number.
MR CROUCHER: Yes, and that is the view that has been taken in Victoria about that sort of provision, because you must understand, your Honours, that this Act deals with regulation of doctors and the like, as well, and that is where those sort of issues come into play when they are handling prescribed drugs and the like.
KIEFEL J: In that sense section 104 does not cut across the common law presumption of proof in relation to elements of the offence itself.
MR CROUCHER: That is right. So just going back to this question of an issue or an area of liberty, if you like, designedly left, well it is put against us in the same way that was put against the relevant party in McWaters v Day that as in McWaters v Day it could hardly be said that when dealing with the State statute which punished simply driving whilst intoxicated whereas the Commonwealth statute that dealt with the defence personnel dealt with the offence of driving whilst intoxicated to a particular degree and having a further element that, in the area of liberty, it could not be said that an area of liberty, namely to drive around drunk, would be designedly left, but this is quite different, of course.
GUMMOW J: Special provision for conduct of defence forces and general provision for driving by the community at large might be example of the different subject matters referred to by Chief Justice Dixon in McLean and Sir Harry Gibbs in Winneke at 218, like the sheep.
MR CROUCHER: Precisely, that is what we say. We said as much in our reply.
GUMMOW J: The sheep has been injured, but there are two subject matters for legislation.
MR CROUCHER: Indeed. Secondly, if it needs to be said, it is one thing to say that it would not be proper to speak of an area of liberty to drive around drunk in a car as opposed to drive around drunk in a car with a further element of dangerousness to it, the Commonwealth provision in that case, but it would be an area of liberty not to be subjected to a reverse onus of proof of possession when under ordinary principles one is presumed to be innocent just because some drugs are found at a property on which one is an occupier.
FRENCH CJ: How do you define the area of liberty, if you say the area of liberty is innocent?
MR CROUCHER: Occupation.
FRENCH CJ: Occupation.
KIEFEL J: Or do you say the liberty is no burden of proof?
MR CROUCHER: Either or both, your Honour.
KIEFEL J: It takes you into two different areas, though, does it not? Potentially, it is back to the offence and proof question.
MR CROUCHER: I will have both, thanks, your Honour.
FRENCH CJ: Innocent occupation, after all, is still an area of liberty. It is just that you have to prove it.
MR CROUCHER: Yes, but that is the vice, is it not, in my submission.
FRENCH CJ: I am not sure that the area of liberty discourse helps a great deal in the context of a reverse onus.
MR CROUCHER: Just insofar as it is put against us, we answer it in that way, your Honours. I started this argument with the reading at paragraph [22] of the judgment in Dickson v The Queen, and going through each of those sentences, for example, I have dealt with the first sentence, and then the second sentence is:
In the absence of the operation of s 109 of the Constitution, the Victorian Crimes Act will alter, impair or detract from the operation of the federal law by proscribing conduct of the appellant which is left untouched by the federal law.
Well, for the reasons given, so too here –
The state legislation, in its application to the presentment upon which the appellant was convicted, would undermine and to a significant extent, negate the criteria for the existence and adjudication of criminal liability adopted by the federal law.
So too here, for the reasons given. Then the judgment says –
No room is left for the state law to attach to the crime of conspiracy to steal property in the possession of the Commonwealth more stringent criteria and a different mode of trial by jury.
Stopping here, we say the same in this case. There is no room for this State law to attach this reverse onus when the Commonwealth law covers the same area, and put simply, a reasonable doubt as to possession avails an accused in the Commonwealth provision, this accused in this case, but does not avail an accused by operation of section 5.
BELL J: An important point of distinction was that the Commonwealth in enacting the provision relating to conspiracy had determined to exclude certain conduct from the scope of the offence under the Victorian law, which picked up the older common law. That does not apply here. The fact that one has a mode of proof which assists the prosecution is quite distinct from the differences between conspiracy under the Code and at common law that were identified not only in Dickson, but if you go back to LK and RK.
MR CROUCHER: That goes back to the point that was raised by your Honour and Justice Gummow before about what is it. Is it a mode of proof, or is it the elements? We say it is both, firstly. Secondly, it matters not, because in the end, what it means is that to take up the last sentence of that paragraph [22] where the Court had said:
To adapt remarks of Barwick CJ in Devondale Cream, the case is one of “direct collision” because the state law, if allowed to operate, would impose upon the appellant obligations greater than those provided by the federal law.
That is what it does here.
BELL J: What obligation does it impose greater than the federal law?
MR CROUCHER: That when drugs are found on your property, unless you prove on the balance of probabilities otherwise, you will at least be guilty of possession of the drugs, a criminal offence carrying five years gaol, or possibly trafficking in the drugs if it is in an amount beyond the relevant threshold which carries 15 years gaol and if it is a larger amount, a commercial quantity, carrying 25 years gaol and if it is a large amount still, trafficking in a large commercial quantity which carries life in gaol and for which people commonly get 10 or 15 years gaol for.
BELL J: If one looks at obligation in the context of the notion of a rule of conduct, a rule of conduct might be here that one does not possess drugs. The rule of conduct is not that one is not an occupant of premises that happen have to have drugs on them, albeit that circumstance goes to proof.
MR CROUCHER: Well, your Honour, can I give what might be considered to be a homely example to test this out. A couple have teenage children, one of whom happens to be in possession of drugs. He takes them home. He secretes them in the kitchen because he knows his mother will find them in his bedroom or something like that. Stopping there, four people in the house, the two parents and the two children, only one of whom we know at worst is guilty of possession of the drugs. All of them, all four people under section 5 are presumed to be in possession of those drugs. They are in jeopardy of conviction for at least possession and possibly trafficking in those drugs and, what is more, not just the odium that goes with that, but potential loss of property that goes with it, forfeiture and so on. It goes on and on and on.
BELL J: But all four have not contravened the rule of conduct. One has. It may be that one or more of the other three will be wrongly convicted, but that is a different matter.
MR CROUCHER: Well, it is the matter about which we are here, your Honours, in my respectful submission. The other thing that we have not emphasised so far, which the Court did in Dickson, was the added element of adjudication. Now, to be frank, I am not clear whether the Court meant by adjudication determining whether one is guilty of the elements of conspiracy or the mode or the means of the procedure of a trial, namely, the trial by jury issue, but either way, the question of adjudication is relevant here in the same way, of course, because State provision, no requirement of unanimous verdict, Commonwealth provision there is, and insofar as adjudication means manner of proof or can be taken to mean that, then it covers it as well.
The other difference, it seems to us, maybe it is a moral argument more than anything else, is that, going back to the example, homely though it may be, that I gave your Honours before, we know that there is purely innocent behaviour on the part of three of those four people, whereas the Commonwealth conspiracy provisions, narrower as they are than the State provisions, mean that people can have some fairly unsavoury thoughts and conversations about Commonwealth property without being guilty of conspiracy, whereas under the State law they might be guilty of conspiracy to steal. It is a different moral paradigm, if you like, in my respectful submission, if that matters.
Just, your Honours, on the effect of provisions like section 300.4, I think I mentioned that in passing before and we have mentioned it in our written submissions, but the passage from the judgment of Sir Harry Gibbs in University of Wollongong v Metwally ‑ ‑ ‑
GUMMOW J: What is the citation?
MR CROUCHER: It is [1984] 158 CLR 447. It is at tab 4. It is the fourth document in the bundle of materials - in the appellant’s list of authorities, I should say. At the foot of 455 to the top of 456 Sir Harry said this – the last two lines of 455:
If there were a direct conflict between a Commonwealth law and a State law as, for example, where one law forbids what the other commands, or one takes away a right which the other confers, an assertion in the Commonwealth law that it was not intended to be inconsistent with the State law would be meaningless and ineffective.
We rely obviously on the second clause. It takes away a right, because that is what the State provision does. It takes away the right to be presumed innocent, whereas the Commonwealth law preserves that basic right. Therefore, section 300.4 cannot say ‑ ‑ ‑
GUMMOW J: It might be a liberty, I suppose.
MR CROUCHER: Yes, and that ought to apply ‑ ‑ ‑
FRENCH CJ: It is a requirement of proof, is it not?
MR CROUCHER: Yes.
FRENCH CJ: The word “presumption” of innocence appears in the Charter. How does it play out in the common law?
MR CROUCHER: The presumption of innocence, we would say – you do not need to consider the Charter at first blush because ‑ ‑ ‑
FRENCH CJ: No, it was just in the context of its characterisation of this as a right or maybe a liberty. We are really talking about a requirement on the prosecution to prove guilt beyond reasonable doubt and sometimes the term “presumption of innocence” is loosely used in that respect.
MR CROUCHER: Yes, I understand. We are starting from the proposition that that is the ordinary state of affairs at the common law. Unless removed by statute, that is the position.
GUMMOW J: But mode of proof really cannot perhaps be treated as some dichotomy in this because it is no good prescribing a criminal offence if that is, as it were, in the abstract. It has to be attached to some method of adjudication whereby there is a conviction required.
MR CROUCHER: Indeed, otherwise we are all guilty. If you start from the opposite end, most of us will be guilty of something unless we proved otherwise, it would not take much.
GUMMOW J: Otherwise, you just have a norm of conduct. The question is, what does the judicial power do about it? The answer is, if there is prosecution and certain things happen, there is a punishment, but you do not get to the punishment just from the norm of conduct.
MR CROUCHER: No, we respectfully agree, obviously. Might I move then, unless there are any questions about the section 109 point, to the ground concerning the Charter and section 5’s construction in light of the Charter or without the Charter? Here we are dealing with paragraph 56 and following of our written submissions.
FRENCH CJ: Just before we leave that last point, when one talks in section 25 of the Charter of the right to be presumed innocent, how is that to be interpreted broadly? As a procedural right to have the case against you proven ‑ ‑ ‑
MR CROUCHER: Yes.
FRENCH CJ: ‑ ‑ ‑ rather than – yes?
MR CROUCHER: Yes, there is often an elision, I suppose, between the presumption of innocence and the burden of standard of proof.
FRENCH CJ: People do not have to go around thinking you are innocent in order to vindicate that right.
MR CROUCHER: Indeed, but they are often spoken of in the same breath, and they, I think, for this purpose mean – well, it is submitted, effectively mean the same thing, at least that the right is to be – the starting point is that he who alleges a criminal offence must prove, if I can put it that way. Now, there is different ways, of course, of approaching this and we in our submissions have said that the proper – bear in mind that we are deferring to Dr Donaghue so I am going to try to be brief.
GUMMOW J: We really have to understand the relations between Part 1, Part 2 and Part 3, I think, of this Act, which is quite complicated, even before you get down to the specific questions of section 7 and section 32.
MR CROUCHER: Your Honour, I understand that and sometimes it is awkward given the way we have divided things, but I do not want to steal Dr Donoghue’s thunder, he is going to deal with it in more detail. If it is satisfactory to the Court, if I can make our points briefly, which perhaps are jumping ahead, despite ‑ ‑ ‑
FRENCH CJ: Your 109 argument is put on the premise that it does not matter in terms of outcome whether it is a special rule of interpretation or a statutory version of a principle of legality; there is still a 109 inconsistency. That is what I understood you to say. It is just a matter of the degree of inconsistency.
MR CROUCHER: Yes, and it does not matter whether we are strictly speaking successful on our section 32 of the Charter/section 5 of the Drugs Act argument because the furthest we go is to say that it is still an evidential onus cast upon an accused, which, of course, is strictly speaking to violate the presumption of innocence, and more importantly, for the section 109 purpose, is different from the Commonwealth provision which starts at the usual position of a presumption of innocence.
The position we come to, which I will explain in a moment despite not going through all the chapters that your Honour Justice Gummow would wish me to at this moment, is that the construction of section 5 which means there is an evidential onus rather than a legal onus for this proof is one that is, of course, consistent with – it is a limitation on the right to be presumed innocent, but it is a justified limitation and it is a construction that is open and therefore, if it is open, if it is possible, consistent with the purposes of the legislation, then it should be adopted under section 32.
FRENCH CJ: Now, when you use the term “evidential onus”, do you mean anything more than a notice to introduce some evidence?
MR CROUCHER: That would be a question of law for a judge to say whether or not the evidence which has been adduced, whether by going into evidence or pointing to evidence in a prosecution case, is such as to be capable of raising a reasonable doubt. Whether it is is a matter of course for a jury in the end to determine. Of course, usually that would be by getting in the witness box and saying, “No, I did not know that the drugs were there” in a case like this, but it might be pointing to some other – another person might come along and say, “Well, actually, no, that person has nothing to do with it. It is mine.”
BELL J: It would not need another person to come along and say that. It would be sufficient that the evidence disclosed that another person or persons had access to the premises. That, one might think, is the very reason that informs section 5 of the State Act. The recognition of the difficulty of establishing possession at common law in any instance where drugs are found in premises to which more than one person has access.
MR CROUCHER: Yes, but people can still be jointly in possession, your Honour.
BELL J: Well, people can be jointly in possession, but there are, as the authorities show, difficulties about that.
MR CROUCHER: Yes.
BELL J: I am simply raising with you to the extent one has regard to the purpose of section 5, it might be thought that it is to overcome the problems that were pointed out in Filippetti’s Case (1978) 13 A Crim R 335 where it was said in relation to the accused in that case, against whom there was some evidence apart from the finding of the drugs in the lounge, that the Crown case had to fail because of the inability to prove beyond reasonable doubt that other persons in the premises might not have been in possession of the drugs. Now, that seems to be the purpose of a provision such as section 5. If it becomes an evidential onus only, what utility does it serve?
MR CROUCHER: Well, two things, might I say. I doubt whether, under the way the matter is approached in Victoria, one would have the same success necessarily with that defence, but that is as may be. Secondly, it still does have an effect because if there is nothing that can be pointed to in the Crown case or the accused does not go into evidence or there was no record of interview, section 5, read as an evidential onus as opposed to a legal onus, would still have its effect. It would still deem a person who is in occupation of the premises on which the drugs are found to be in possession.
So I think it was South Australia’s submissions that made the point that an onus like this tends to force an accused to go into the witness box or to put on some evidence or something of that nature. It does not change that. It just changed by going from a legal onus to an evidential onus other than as a question of degree. It is still an onus of disproof imposed upon an accused person, but at a different threshold and at a threshold which we say is justifiable under section 7 of the Charter, on an evidential onus, but which is not justifiable on the legal onus of disproof.
KIEFEL J: Was there a concession made here by the prosecution, at least in the Court of Appeal, that an evidential onus would have been sufficient?
MR CROUCHER: The concession was that it would not necessarily make much difference to prosecutions in this State.
KIEFEL J: Difference, that is right. I was not quite sure what the ambit of that concession was. Was it because, as you have implied in what you have said, that the purpose of section 5 might be to require people to adduce some evidence, probably go into the witness box themselves and provide some explanation?
MR CROUCHER: Yes, I think that is part of it. Mr Silbert will speak for himself later on, no doubt, but that is part of it. It is also that often in cases where section 5 is relied on, as a matter of experience, it is almost superfluous because the surrounding evidence is such that it is pretty easy to conclude, without the benefit of section 5, whether at a legal onus level or an evidential onus level that the Crown has met its case because there might be a very large amount of drugs. It might be very clear that the person who is accused is in possession of it solely or jointly with others, because of, when it comes to trafficking, the indicia of trafficking as well. There might be scales and all sorts of things and a very large amount.
For example, I spoke before of there being different thresholds in Victoria, as there are in the Commonwealth legislation of trafficking simpliciter, trafficking in a commercial quantity and trafficking in a large commercial quantity and when you have those higher amounts then it is much easier, obviously, for the prosecution to get past the first step, as it were, that this in possession for sale.
BELL J: Can we come back to your homespun illustration – the four people in the home with the teenage child going through an awkward period?
MR CROUCHER: Mine are young at the moment, your Honour, and I am not looking forward to the teenage years.
BELL J: Absent the provision of section 5, how would the Crown seek to establish as against any one of those persons that they were the possessor of the drugs found in a common area of the home?
MR CROUCHER: It depends on the facts, of course. Obviously if there were admissions or some DNA evidence or forensic evidence linking the offender that we know to the drugs, there might be something like that. But absent all of that, if it were just the mere finding of the drugs in the kitchen cabinets, as we said, then, yes, it would be harder. I accept that, which is part of the point. But it would not be, to use that awful phrase, to “throw the baby out with the bath water” to construe section 5 as imposing an evidential onus. When I answered your Honour Justice Bell’s question a moment ago I was assuming not even an evidential onus, just the Commonwealth position in section 302.4.
GUMMOW J: I was going to ask you about that. If you are right about construction of section 5 by application of the Charter, how does your section 109 argument then operate? Does section 109 still make it inconsistent?
MR CROUCHER: Yes, because it is just a question of degree then, the difference being in the Commonwealth provision, the onus, from start to finish, on the element of possession insofar as it relates to trafficking, is upon the Crown, whereas under section 5, whether our construction or the first respondent’s construction is accepted, there is still an onus of disproof on an accused on whose property drugs are found because he or she will be deemed to be in possession unless either, on the Crown’s construction, it proves on a civil standard that he or she did not know, or the like, or was not in possession in some way, or alternatively, on our construction, at least puts on some evidence sufficient to raise a reasonable doubt about that issue.
CRENNAN J: It is part of your argument, is it not, that construing section 5 as you urge, can be done in accordance with attempting to find the ordinary meaning of section 5. In other words, you do not have to go to the Charter, on your argument.
MR CROUCHER: Indeed.
CRENNAN J: So you are saying you do not add words to section 5, or anything of that sort. You simply construe the words “unless the person satisfies the court to the contrary” can be construed as requiring an evidential onus, and therefore, I suppose, it is a consequence of that argument that R v Clarke and Johnstone is wrongly decided.
MR CROUCHER: Indeed, and to take that point a bit further, it was the Court of Appeal who read in the words “on the balance of probabilities” which do not appear in section 5, despite the fact that in surrounding provisions, including one that must have a grave impact, section 73 itself, when plainly casting an onus on an accused to do something in order to achieve something, says so, that it must be done on the balance of probabilities.
Yes, we say on the ordinary construction one does not need to go to the Charter at all. But of course, now that the Charter is here, all legislation in Victoria must be considered through the prism of section 32, and if we fail on the ordinary construction argument, we say that section 32 – because that ordinary construction argument at least shows that our construction is possible, and is a version that is a justifiable limit on human rights, but not to go so far as to be an unjustifiable limit, as the other construction would be – then it must be preferred.
GUMMOW J: The question is how do you read section 5 plus section 73?
MR CROUCHER: Yes. That becomes relevant also under ground 2, but the third issue we are going to deal with because we say that, again, jumping ahead for a moment, irrespective of the section 109 argument, irrespective of the Charter arguments, what has been misunderstood here is that despite Clarke and Johnstone, the Court of Appeal of Victoria in Tragear and Georgiou, ever since Clarke and Johnstone, has made it clear that whatever section 5 achieves in relation to the offence of possession simpliciter – namely on the Crown’s construction, a reverse onus on the civil standard – when it comes to trafficking, which requires one to look at both section 5 and section 73(2), the prima facie provision relating to trafficking and section 71AC, the provision itself, and section 70, which is the possession for sale, extension to trafficking – when they are all read together, the steps are these, that despite section 5, a person cannot be guilty of trafficking by way of possession for sale, which was this case, unless the person is proved, beyond reasonable doubt, to know that he or she had in possession the drug, because you cannot have it for a purpose, namely for sale, unless you know you have it.
CRENNAN J: Does that reinstitute the presumption of innocence despite section 5?
MR CROUCHER: At the trafficking level - can I say yes and no, your Honour, because again, in our respectful submission, this is the mistake in the first respondent’s submission. The first respondent says that our construction at that level - and I have now jumped ahead to consider this point - means that sections 5 and 73(2) will be rendered meaningless and they go so far as to say that, even in the absence of evidence to the contrary, to use the words of section 5, our construction will mean that a person will be found not guilty of trafficking. That is just not so. All it means is that if there is a reasonable doubt about knowledge of the drug, the person cannot be found guilty of trafficking based on possession for sale because one cannot have possession for a purpose, namely sale, without knowing one has it. That is all it means.
It would be matter for a jury in such a case, whether or not the person is guilty of the offence and to make the point a bit further, that insofar as the learned trial judge repeatedly told the jury in the charge that the onus was on the accused, or the appellant, to prove on a civil standard that she was not in possession and the failure to make the point that - well actually, in this case because she has gone into evidence, told you this, the real issue becomes whether or not in order to prove trafficking which was the charge, in order to have it in possession for sale, she has to have been proved beyond reasonable doubt by the Crown to have known that she had it. Therefore, the trial miscarried.
I am sorry to take it out of turn, but since your Honours just raised it, I should take you to the passage in Tragear’s Case where this point is made by Justice Callaway - Tragear is No 15 in our authorities –R v Tragear (2003) 9 VR 107. At page 117 of the report in paragraphs 43 and 44, Justice Callaway says this and he says it, I should say, in the context that there was going to be a retrial and because some of these issues about how proof of the charge might be made out should be ventilated now so that it would not be got wrong at the retrial. His Honour says this at paragraph 43:
I turn to the second matter that has a bearing on the new trial. It may be assumed that the applicant will again say that he did not know that the cocaine was in the knapsack
Stopping there, “knapsack” relates to the charge of trafficking -
and did not know that the cocaine was in the chest of drawers -
The chest of drawers related to the charge of possession as opposed to trafficking -
and accordingly that he did not possess the cocaine on either occasion. In that case, even if the Crown successfully invokes section 5 in relation to counts 1 and 2 -
count 1 being the trafficking, count 2 being to establish possession -
it will still have to prove beyond reasonable doubt that the applicant knew of the cocaine in the knapsack -
That is the trafficking charge -
in order to secure a conviction on count 1. Otherwise he would lack the requisite mens rea, of which s 73(2) is only prima facie evidence.
It is particularly important in a case like this that the jury be clearly instructed on that last point so that, in relation to count 1 -
trafficking - the knapsack,
they do not confuse –
(a)the onus on the applicant to prove that he did not know of the cocaine in order to prove that he was not in possession;
with –
(b)the onus on the Crown, even if he was in possession and of an amount that is prima facie evidence of trafficking, to prove that he did not know that it was cocaine.
BELL J: That is the deficiency that you identify here. Even though the trial judge did on occasions refer to the burden being on the Crown to establish proof of guilt of trafficking beyond reasonable doubt, there was no explanation that while the appellant bore the burden of establishing that it was more likely than not that she was unaware of the drugs. That was at that stage. Nonetheless, it was necessary for the jury to come back and consider if, for example, they approached the matter on the basis that common experience suggested it is likely a woman knows what is in her fridge and on that basis they concluded the possession issue against her. Nonetheless, her evidence might have raised a doubt, or some other evidence might have raised a doubt in their mind. That was not made clear in the charge and that is ‑ ‑ ‑
MR CROUCHER: Not in our submission, and, indeed, it was unusual because it seems, with respect, that the way the parties conducted the case was in the absence of the understanding of what has been said by Justice Callaway in Tragear and which was later picked up by Justices Neave and Robson in Georgiou. Rather, they too seemed to proceed on the assumption that it was the end of the penny section, as it were, if the appellant failed to prove on the civil standard that she did not know of the drugs when in fact, for the reasons we have just been through, that is not so.
Your Honour Justice Crennan a moment ago, when introducing this point, said that Clarke v Johnstone would need to be overruled on this point and, of course, that is what the respondent’s position is. In our submission, whilst there are statements in Clarke v Johnstone that suggest that is so, it is not all that clear, with the greatest of respect. Indeed, one of the cases which we have not referred to prior to today but we have mentioned in our summary of oral argument is R v Medici (1989) 40 A Crim R 413, which we have not got copies of at the moment. Justice Crockett, who was a member of the court in Medici and wrote the judgment – and, of course, who was also a member of the court in Clarke v Johnstone – said something which, in our submission, suggests that well prior to Justice Callaway’s remarks in Tragear back in 1989, so soon after Clarke v Johnstone – certainly Justice Crockett, with whom the other members of the court agreed in Medici, thought that the view we are putting about the construction of sections 5 and 73(2) read together was right. In the middle of the page at 415 – it is a little bit hard to read because of the context, but his Honour says – and I am paraphrasing the first part of the sentence:
the applicant contends and the Crown concedes that the judge’s statement that the applicant’s admitted possession –
I should stop there. This was a similar case, drugs found in premises and section 5 and section 73(2) relied on –
had the effect of imposing on the applicant a burden on the balance of probabilities of proving lack of knowledge – and thus that she did not traffick in the drug – was incorrect.
Which is consistent with the point we are making. So whatever the proper construction of what is said in Clarke v Johnstone about it, it is clear that Mr Justice Crockett had a different view of it and, as I say, he was part of the court that gave the joint judgment in Clarke v Johnstone. The passage on which the first respondent relies in Clarke v Johnstone [1986] VR 643 is at page 660 of the report in Clarke v Johnstone and, as I say, as I understand it, they rely on the passage at 660. Without taking your Honours to it, in our respectful submission, it is not quite as clear as the Crown says, in our submission, but, in any event, we say it does not matter because it is plain that whatever their Honours meant, the better view is the view that has been in existence since then from Medici through to Tragear through to Georgiou.
CRENNAN J: I suppose there is that statement at about point 7 of the page.
MR CROUCHER: Yes.
KIEFEL J: If you are right on this ground as to the onus that remains upon the prosecution with respect to knowledge and therefore intention, does that detract from the liberty that you say is effected for the purposes of your inconsistency argument?
MR CROUCHER: Well, actually, in our respectful submission, it still leaves the 109 argument open ‑ ‑ ‑
KIEFEL J: But it does have an effect?
MR CROUCHER: ‑ ‑ ‑ but it might be unnecessary to decide – although maybe it is necessary. Let me just go back a step. The point that we make only applies to trafficking; it does not apply to possession, firstly. Indeed, the offence of possession would still, on the Crown’s construction, be subject to a reverse legal burden of proof on an accused when drugs are found on premises. So a person would still be at risk of conviction under that offence, but, of course, that is not the offence with which the appellant was presented and charged in this case, it was trafficking.
GUMMOW J: I am not sure I understand that.
MR DONAGHUE: I am sorry I have made ‑ ‑ ‑
GUMMOW J: Can you just explain it again shortly?
MR DONAGHUE: Sorry, your Honour, yes. As we understand the provisions ‑ ‑ ‑
GUMMOW J: Provisions of what?
MR DONAGHUE: Of 13.4 in particular the Parliament has expressed the intention that burdens that are imposed upon the defendant will be construed as legal burdens only if they use one of the identified formula to impose the legal burden, so as to bring that burden within an exception to the general rule set by 13.3(1), the general rule being whenever you impose any burden on the defendant it is an evidential burden only.
FRENCH CJ: This demonstrates the respectability of the analogical reasoning in respect of section 5?
MR DONAGHUE: It does because it assumes that a provision of that kind in a Commonwealth statute book could be read in the way that we submit it should be read. Your Honours, unless the Court has any questions, those are our submissions.
FRENCH CJ: Yes, thank you very much, Mr Donaghue. The Court will adjourn until 9.45 tomorrow for pronouncement of orders and 10.15 for the resumption of this matter.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 9 FEBRUARY 2011
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