Momcilovic v The Queen & Ors - [2010] HCATrans 227

[2010] HCATrans 227

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M28 of 2010

B e t w e e n -
VERA MOMCILOVIC
Applicant
and
THE QUEEN
First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
Second Respondent
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
Third Respondent
Application for special leave to appeal

FRENCH CJ
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 SEPTEMBER 2010, AT 10.47 AM

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

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

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

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

FRENCH CJ: It seems probably appropriate that the order of debate would be Mr Croucher first, followed I imagine by the Solicitor‑General, and then Mr Donaghue, and then Mr Silbert as the contradictor.

MR CROUCHER: Well, your Honour, that is what we actually planned to put to your Honours about that.

FRENCH CJ: It is a curious situation we find ourselves in where the Queen and her Attorney‑General appear to be on opposite sides of the debate, but no doubt we will be enlightened in due course.

MR CROUCHER: Your Honours, in order to avoid repetition and conserve time, it has been agreed as well between the parties that insofar as the second point is concerned, the Charter point, that I will adopt the submissions of the Solicitor‑General and Dr Donaghue on those points, save for one point that I want to emphasise and I will come to that shortly.

FRENCH CJ: All right. Yes, Mr Croucher.

MR CROUCHER: May I deal with the first point first, that is to say the ordinary construction, or using ordinary principles of construction, how section 5 should be construed. It is submitted that the Court of Appeal erred in rejecting the submission that on those ordinary principles of construction section 5 of the Drugs Act should be construed as casting on an accused only an evidential onus of disproof of possession.

There are six reasons. Firstly, whilst the concluding words of section 5, “unless the person satisfies the court to the contrary” impose an onus of disproof on an accused they do not expressly or impliedly indicate that such an onus can be discharged only on…

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.

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Details

Case: [2010] HCATrans 227
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the case of *Momcilovic v The Queen & Ors*. The appellant, Mr Momcilovic, was charged with trafficking in a commercial quantity of methylamphetamine. The central dispute concerned the constitutional validity of a provision of Victorian legislation that created a reverse onus of proof in relation to the trafficking charge.

The High Court was required to determine whether section 32 of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) (the Act), which presumed that a person found in possession of a traffickable quantity of a drug of dependence intended to traffic in it unless the contrary was proved, was invalid by reason of its inconsistency with the implied freedom of political communication. The Court also considered whether the provision infringed the presumption of innocence, a fundamental right under the Australian Constitution.

The majority of the Court held that section 32 of the Act did not infringe the implied freedom of political communication. They reasoned that the provision was not directed at or likely to impair the freedom of communication about political or governmental matters. Regarding the presumption of innocence, the majority found that while the provision shifted the onus of proof, it did not offend the constitutional requirement for the prosecution to prove guilt beyond reasonable doubt. The Court distinguished between presumptions of fact and presumptions of law, and noted that the provision created a rebuttable presumption of fact, allowing the accused to adduce evidence to the contrary.

The appeal was dismissed.

Orders