VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
Intervening
HUMAN RIGHTS LAW RESOURCE CENTRE
Amicus curiae
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JUDGES
MAXWELL P, ASHLEY and NEAVE JJA
WHERE HELD
MELBOURNE
DATE OF HEARING
22 July 2009 and 23 July 2009
DATE OF JUDGMENT
17 March 2010
MEDIUM NEUTRAL CITATION
[2010] VSCA 50
JUDGMENT APPEALED FROM
R v Momcilovic (County Court of Victoria, Judge Murphy; applicant sentenced 20 August 2008)
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CRIMINAL LAW – Appeal – Conviction – Trafficking methylamphetamine by possession for sale – Co-offender convicted of trafficking by sale – Whether complicity direction required – Applicant was owner of premises where drugs found – Onus on applicant to prove lack of knowledge of presence of drugs – Applicant’s knowledge was sole issue at trial – Whether alternative verdict of possession open – Whether directions required on other elements of possession – Application refused – Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 5, 73(1), 73(2).
CRIMINAL LAW – Appeal – Sentence – Trafficking methylamphetamine by possession for sale – Quantity 394 grams (mixed) – Judge sentenced applicant on erroneous basis that quantity trafficked was 80% of commercial quantity – Crown concession – Re-sentenced – One year six months’ imprisonment – Special considerations – Applicant on bail pending appeal – Appeal delayed because test case – Unserved portion of sentence suspended.
HUMAN RIGHTS – Presumption of innocence – Statutory reversal of burden of proof of possession of drugs – Reversal affected both possession and trafficking offences – Whether possible to interpret provision compatibly with presumption of innocence – Whether limit on presumption demonstrably justified – Declaration of inconsistent interpretation – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7(2), 25(1), 32(1), 36.
STATUTES – Interpretation – Requirement to interpret statutory provisions ‘so far as it is possible to do so consistently with their purpose, … in a way that is compatible with human rights’ – Whether court authorised to depart from meaning intended by enacting Parliament – Whether ‘special’ rule of interpretation – Function of interpretive rules in representative democracy – Principle of legality – Ghaidan v Godin-Mendoza [2004] 2 AC 557 not followed – Kracke v Mental Health Review Board [2009] VCAT 646 overruled – Charter of Human Rights and Responsibilities Act 2006 s 32(1).
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Appearances:
Counsel
Solicitors
For the Applicant
Mr M J Croucher
Rob Melasecca Barristers and Solicitors
For the Crown
Mr G J C Silbert SC with Mr C W Beale
Mr C Hyland, Solicitor for Public Prosecutions
For the Attorney-General for the State of Victoria (intervening)
Ms P M Tate SC (Solicitor-General) with Mr O P Holdenson QC, Ms J M Davidson and Mr A M Dinelli
Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission (intervening)
Dr S Donaghue
Victorian Equal Opportunity and Human Rights Commission
For the Human Rights Law Resource Centre (with leave…
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
AGLC
R v Momcilovic [2010] VSCA 50
Case
[2010] VSCA 50
Decision Date
CaseChat Overview and Summary
The case of R v Momcilovic involved the appellant, who was convicted of trafficking methylamphetamine by possession for sale. The dispute arose in the Court of Appeal of the Supreme Court of Victoria. The appellant argued that the trial judge had incorrectly directed the jury regarding complicity and the burden of proof, and that the statutory reversal of the burden of proof infringed upon the presumption of innocence. The appellant also sought a re-sentencing due to an error in the quantity of drugs considered for sentencing purposes.
The legal issues before the court were whether the trial judge had erred in the directions given to the jury regarding complicity and the burden of proof, and whether the statutory reversal of the burden of proof was compatible with the presumption of innocence. The court needed to determine whether the statutory provisions could be interpreted in a way that was compatible with human rights and whether the court was authorised to depart from the meaning intended by Parliament. Additionally, the court had to consider the appropriate sentence for the appellant, taking into account the error in the quantity of drugs for sentencing purposes.
The court found that the trial judge had not erred in the directions given to the jury, and that the statutory reversal of the burden of proof was compatible with the presumption of innocence. The court held that it was not authorised to depart from the meaning intended by Parliament, and that the principle of legality did not allow for such an interpretation. The court also re-sentenced the appellant to one year and six months’ imprisonment, with the unserved portion of the sentence suspended. The court held that the appellant's human rights were not infringed upon by the statutory reversal of the burden of proof, as the limit on the presumption was demonstrably justified.
The court refused the application for a declaration of inconsistent interpretation and upheld the conviction and sentence of the appellant. The court found that the statutory provisions could be interpreted in a way that was compatible with human rights, and that the principle of legality did not allow for a departure from the meaning intended by Parliament. The court held that the reversal of the burden of proof did not affect the appellant's right to a fair trial, as the limit on the presumption was demonstrably justified.