Momcilovic v The Queen & Ors

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.