Momcilovic v The Queen & Ors

The High Court of Australia considered the constitutional validity of a Victorian law, the *Drugs, Poisons and Controlled Substances Act 1981* (Vic), and specifically section 5(1)(a) of that Act, which created a presumption that a person found in possession of a drug of dependence had the intention to traffic it. The applicant, Momcilovic, had been convicted of trafficking a commercial quantity of ecstasy, relying on this statutory presumption. The Queen and the Director of Public Prosecutions of Victoria were the respondents.

The central legal issue before the High Court was whether section 5(1)(a) of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) was invalid by reason of its inconsistency with section 118 of the *Constitution*, which guarantees that "a person charged with any offence under the law of a State is entitled to the benefit of the law of the Commonwealth which is applicable to the charge." The Court was required to determine if the statutory presumption infringed upon the applicant's right to be presumed innocent until proven guilty, a fundamental principle of common law and a component of the "benefit of the law of the Commonwealth" for the purposes of section 118.

French CJ, in his judgment, reasoned that the presumption of innocence is a fundamental right that underpins the criminal justice system. He found that section 5(1)(a) reversed the onus of proof, requiring the accused to disprove an element of the offence, thereby infringing upon this fundamental right. His Honour concluded that the presumption of innocence, as a fundamental aspect of the "benefit of the law of the Commonwealth," was engaged by section 118 of the *Constitution*. Consequently, the statutory provision, by imposing an impermissible burden on the accused, was inconsistent with section 118 and therefore invalid to the extent of that inconsistency.

The High Court, by majority, held that section 5(1)(a) of the *Drugs, Poisons and Controlled Substances Act 1981* (Vic) was invalid. The Court ordered that the appeal be allowed and the conviction be quashed.