R v Momcilovic
[2010] VSCA 50
•17 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2008 0798
| THE QUEEN | Respondent |
| v | |
| VERA MOMCILOVIC | Applicant |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Intervening |
| 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 to appear as amicus curiae) | Mr M K Moshinsky SC with Mr C Young | Allens Arthur Robinson |
TABLE OF CONTENTS
Background
PART I – CONVICTION APPEAL (GROUND 1): THE REVERSE ONUS
The meaning of s 5 independently of the Charter
Submissions on the effect of the Charter
The approach to interpretation under the Charter
Summary of conclusions
The interpretive obligation in s 32(1)
The English authorities
The Hong Kong approach
The New Zealand authorities
Was s 32(1) intended to replicate s 3(1) HRA?
The language of s 32(1)
What did the Victorian Parliament intend?
Certainty of interpretation and representative democracy
What is ‘possible’ under s 32(1)?
The correct methodology
Does s 5 DPCS Act limit the presumption of innocence?
The interpretation of s 5 DPCS Act
Legislation, not interpretation
Jury directions on possession charge
The reverse onus limits the presumption of innocence
Is the limitation justified under s 7(2) of the Charter?
Declaration of inconsistent interpretation
PART II – CONVICTION APPEAL (GROUNDS 2–5)
Directions on possession and trafficking
No directions on complicity
Cross-examination on quantity
Alternative verdict of possession
Unsafe verdict
PART III – SENTENCE APPEAL
APPENDIX 1
MAXWELL P
ASHLEY JA
NEAVE JA:
Background
After a trial in the County Court, the applicant was convicted of one count of trafficking in a drug of dependence, being methylamphetamine. The maximum penalty for the offence is 15 years’ imprisonment.[1] The applicant was sentenced to two years and three months’ imprisonment, and a non-parole period of 18 months was fixed.
[1]Section 71AC, Drugs, Poisons and Controlled Substances Act 1981 (Vic).
The applicant seeks leave to appeal against both conviction and sentence. (She was granted bail pending appeal because of the Crown concession of sentencing error[2] and because of the likely expiry of the non-parole period before the appeal could be heard and determined.)[3]
[2]See [189]–[190] below.
[3]Re Momcilovic [2008] VSCA 183.
The circumstances of the offending and the nature of the applicant’s defence were summarised by the judge in his reasons for sentence. For convenience, we attach that description as an appendix to these reasons.
The critical facts are these. The drugs in question were found in the applicant’s apartment. Under s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘the DPCS Act’), the applicant was deemed to be in possession of the drugs unless she ‘satisfie[d] the court to the contrary’. Her partner, Velimir Markovski, owned another apartment in the same building but mostly lived with the applicant in her apartment. In evidence given at the applicant’s trial, Markovski admitted that he was involved in drug trafficking and said that the drugs were in his possession for that purpose. He denied, as did the applicant in her own evidence, that she had any knowledge of the drugs or the trafficking operation.
Part I of these reasons concerns – as did most of the argument at the hearing – the nature of the reverse onus imposed by s 5 of the DPCS Act. That was the subject of ground 1 of the conviction appeal. Part II deals with the other grounds of appeal and Part III with the sentence appeal. For reasons which follow, we would refuse the application for leave to appeal against conviction but allow the sentence appeal.
PART I – CONVICTION APPEAL (GROUND 1): THE REVERSE ONUS
Section 5 of the DPCS Act has always been understood as imposing on a defendant the legal burden of disproving possession on the balance of probabilities. The first ground of appeal challenged this conventional view, first as a matter of statutory interpretation and alternatively on the basis of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’). Ground 1 was in these terms:
The learned judge erred in directing that, for the purposes of s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), once occupation was proved by the prosecution, the applicant would be in possession unless she proved on the balance of probabilities that she did not know of the presence of the drugs.
Section 71AC of the DPCS Act makes it an offence for a person to traffick in a drug of dependence. Section 70 contains an inclusive definition of the word ‘traffick’. The prosecution case was that the applicant was guilty of trafficking because she had the drugs in her possession for sale (that being one of the defined meanings of ‘traffick’).
As already noted, the prosecution relied on s 5 of the DPCS Act, which gives an extended meaning of the word ‘possession’ for the purposes of the Act, as follows:
Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.[4]
The prosecution also relied on s 73(2) of the DPCS Act, which provides:
Where a person has in his possession … a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.
[4]Emphasis added.
The combined operation of these provisions is potentially very powerful, as the present case illustrates. The finding of drugs on premises occupied by the applicant meant that she was deemed (by s 5) to be in possession of the drugs unless she satisfied the court to the contrary. When she failed to discharge that burden, her deemed possession constituted (because of the quantity involved) prima facie evidence of trafficking by force of s 73(2).
As Ashley JA pointed out early in the hearing, however, the effect of s 5 is not confined to the offence of trafficking. Section 5 also applies to an offence with which the applicant was not charged, that of possessing a drug of dependence, where it has an even more powerful effect. Under s 73(1) of the DPCS Act, a person who ‘has or attempts to have in his possession a drug of dependence is guilty of an indictable offence …’. Except where the offender is in possession of a small quantity of cannabis,[5] that offence carries the following penalties:
·if the offender satisfies the court on the balance of probabilities that the offence was not committed for any purpose relating to trafficking – a maximum of one year’s imprisonment and a fine of not more than $3,500;
·in any other case – a maximum of five years’ imprisonment and a fine of not more than $46,000.
[5]As to which, see s 73(1)(a)(i)-(ii).
Thus, the combined effect of s 5 and s 73(1) is that a person deemed to be in possession of a drug, having failed to satisfy the court to the contrary, is guilty of the indictable offence of possessing the drug. That is, upon proof by the prosecution that a drug of dependence was found ‘upon any land or premises occupied by’ that person, then unless he/she satisfies the Court to the contrary, he/she is deemed to be in possession of that drug. That is sufficient to establish the offence of possession under s 73(1).
All parties to the proceeding accepted that s 5 must be interpreted in the same way wherever it applied under the DPCS Act. That is, Parliament is to be taken to have intended that s 5 should have the same operation in relation to the offence of possession as in relation to the offence of trafficking by possession for sale. Importantly, it was not suggested by any party that s 32(1) of the Charter permitted (less still required) any differential interpretation of s 5 as between one offence provision and the other.
The trial judge directed the jury that, once the prosecution proved that the applicant was in occupation of the premises where the drug was found, the applicant would be in possession unless she proved on the balance of probabilities that she did not know of the presence of the drug. The applicant conceded, properly, that this direction accorded with the established authorities.[6]
[6]R v Clarke & Johnstone [1986] VR 643 (‘Clarke’); R v Tragear (2003) 9 VR 107 (‘Tragear’).
The first submission for the applicant was that those authorities were wrong and should not be followed. It was contended that, quite apart from any argument about the effect of the Charter, s 5 should be read as imposing only an evidentiary onus on the accused, to point to or adduce evidence that he or she was not in possession. That onus having been discharged, it was said, the prosecution would have to prove beyond reasonable doubt that the accused was in possession.
The alternative submission was that, whatever may have been the correct interpretation before the coming into force of the Charter, s 32(1) of the Charter required s 5 to be read as imposing only an evidentiary burden.[7]
The meaning of s 5 independently of the Charter
[7]The Charter applies to all Acts and subordinate instruments, whether made before or after Part 2 came into operation: s 49.
We deal first with the contention that, on ordinary principles of construction, s 5 should be construed as imposing only an evidentiary, rather than a legal, burden on the accused. Given that the accepted interpretation rests on decisions of the Full Court and of this Court, we would follow those decisions unless exceptional circumstances compelled their reconsideration.[8] As will appear, there is no reason to doubt the correctness of those decisions.
[8]Farrar v Western Metropolitan College of TAFE [1999] 1 VR 224, 229 (Winneke P).
According to the submission, if the accused adduced evidence which raised a doubt about any of the elements of possession, then he or she would have ‘satisfie[d] the court to the contrary’. Further, it was said, s 5 did not expressly require the accused to prove on the balance of probabilities that he or she was not in possession. This was to be contrasted with s 73(1) and s 72C of the DPCS Act, where the legislature had provided specifically for the court to be satisfied ‘on the balance of probabilities’. The absence of that phrase from s 5 was said to reinforce the argument that it did not impose a burden of proof on a person in occupation of premises, but only required that person to adduce some evidence that he or she was not in possession.
It was further submitted that to read s 5 as creating a legal onus was ‘inconsistent with other developments in the law of drug offences’. Reliance was placed on the decision in DPP Reference No 1 of 2004; R v Nguyen,[9] where this Court held that in offences of trafficking in a commercial (or large commercial) quantity of a drug of dependence, the accused must be shown to have had an intention to traffick in an amount of the drug above the relevant threshold. In the light of that decision, so it was said:
in a case based on possession for sale, it cannot be that an accused will be convicted of trafficking in a commercial quantity (or trafficking simpliciter) if he or she fails to prove on the balance of probabilities lack of awareness that the amount exceeded the applicable threshold (or lack of awareness of the drug) when the jury has a reasonable doubt that he or she was aware that the amount exceeded the applicable threshold (or of the presence of the drug).
[9](2005) 12 VR 299, 312-3.
In our view, these submissions must be rejected. The question of construction is a straightforward one. The phrase ‘unless the person satisfies the Court to the contrary’ conveys unambiguously the legislative intention that the accused should carry the legal burden of establishing, to the Court’s satisfaction, that he/she was not in possession of the relevant substance. That was the view of the Full Court in 1986 in Clarke,[10] and it was reaffirmed by this Court in Gluyas[11] and again in Tragear.[12]
[10][1986] VR 643 (Crockett, McGarvie and Southwell JJ).
[11](2002) 128 A Crim R 7, 9 (Winneke P, Brooking and Charles JJA).
[12](2003) 9 VR 107, 117.
In Clarke the Full Court said:
[W]hat must be proved by an occupier of relevant land is that he was not in possession of the substance within the common law meaning of the word ‘possession’.
Some meaning must be given to the words in s 5 ‘unless the person satisfies the court to the contrary’. The section clearly casts upon the prosecution the onus of proving either occupation of the relevant land or that the prohibited substance was used, enjoyed or controlled by the accused. The legislature could not have intended to enact that an accused person was called upon to disprove occupation or to prove that he did not use, enjoy or control the substance. If the latter words of the section are to be given any meaning at all it must follow that a person proved to be in occupation of relevant land is deemed to be in possession of the substance unless he proves that he was not in possession of it. That can only mean possession as it is known in common law.[13]
[13][1986] VR 643, 647–8 (emphasis added). For a recent example, see R v Hiep Tan Tran [2007] VSCA 19, [23]–[24].
We respectfully agree with this analysis. The critical word is, of course, the word ‘satisfies’.[14] It means that the defendant must ‘provide [the court] with sufficient proof or information; free [the court] from doubt or uncertainty; convince [the court].’[15] In order to satisfy the court ‘to the contrary’, therefore, the defendant must convince the court that he/she was not in possession.
[14]See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 597 (Mason NPJ).
[15]The New Shorter Oxford English Dictionary (1993) Vol 2, 2692.
The absence of reference to the standard of proof is, in our view, immaterial. It has long been established that, where at common law or by statute a defendant has the burden of proving or disproving any fact, the standard of proof is the civil standard, that is, the balance of probabilities.[16]
[16]Sodeman v The King (1936) 55 CLR 192, 216 (Dixon J).
Submissions on the effect of the Charter
According to this part of the applicant’s argument, the advent of the Charter required that s 5 be interpreted differently, such that the judge had erred in basing his directions on the previously accepted interpretation. The argument involved the following steps:
1. Under s 25(1) of the Charter, ‘[a] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.’
2. The imposition on an accused of a legal burden of disproof, on the balance of probabilities, of ‘an issue as fundamental as possession’ is not compatible with s 25(1).
3. Nor can the imposition of the legal burden be regarded as a reasonable or proportionate limit upon the presumption of innocence, within the meaning of s 7(2) of the Charter.
4. Section 32(1) of the Charter provides: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.’
5. It is possible to interpret s 5, consistently with the purpose of the offence provisions, as placing only an evidentiary burden on the accused, and that is how s 5 must therefore be interpreted.
The submission for the Crown accepted that s 5 limited the presumption of innocence, but contended that the limit was reasonable and proportionate, having regard to the evil of drug trafficking. If, however, the Court were to conclude that the reverse onus was an unjustifiable limitation on the presumption, the Crown submitted that it was not ‘possible’ within the meaning of s 32(1) of the Charter to read down s 5 as imposing only an evidentiary burden. The Court would therefore have to make a ‘declaration of inconsistent interpretation’ under s 36(2) of the Charter. Because of s 36(5)(a) of the Charter, however, the validity of s 5 would not be affected by such a declaration.
The Attorney-General intervened in the proceeding, pursuant to s 34 of the Charter, and was represented by the Solicitor-General. The Attorney-General’s submission was that:
The deeming provisions of s 5 and s 73(2), as relied upon for the offence of trafficking in a drug of dependence by sale under s 71AC, construed in accordance with their ordinary meaning, are compatible with the presumption of innocence either because they impose no limitation on that presumption or because any limitation is reasonable.
When attention was drawn to the significance of s 5 for the offence of possession in s 73(1), the Solicitor-General accepted that s 5 did limit the presumption of innocence in connection with that offence, while maintaining that it did not do so in connection with the trafficking offence. She then sought to demonstrate, by reference to the considerations listed in s 7(2) of the Charter, that any limit which s 5 imposed on the presumption was reasonable.[17] Alternatively, the Solicitor-General submitted, it was ‘possible’ under s 32(1) of the Charter, and therefore necessary, to interpret s 5 as imposing only an evidentiary burden.
[17]See [137ff] below.
The Victorian Equal Opportunity and Human Rights Commission (‘the Commission’) also intervened, in exercise of its statutory right under s 40(1) of the Charter. Its intervention was confined to the effect of s 32 of the Charter on the interpretation of s 5. The Human Rights Law Resource Centre (‘the Centre’) was given leave to appear as amicus curiae and to make brief oral submissions. The Centre’s submissions were also confined to the question of the proper approach to the interpretive task defined by s 32(1) of the Charter. Like the Attorney-General, both the Commission and the Centre submitted that it was ‘possible’ under s 32(1), and hence necessary, to interpret s 5 as imposing only an evidentiary burden.
The approach to interpretation under the Charter
When it is contended that a statutory provision infringes a human right which the Charter recognises, the task for a court or tribunal is to decide whether there is such an infringement and, if so, whether the infringement is justifiable under the test laid down by s 7(2) of the Charter. That subsection provides as follows:
7(2)A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including—
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e)any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
The first step, necessarily, is one of statutory interpretation. The question of infringement can only be addressed once the meaning of the provision has been ascertained. A key issue on the appeal concerned the part to be played in the interpretive process by s 32(1) of the Charter, which provides:
So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
According to the submissions of both the Attorney-General and the Commission, s 32(1) has no part to play in the initial interpretive step. The meaning of the provision is to be ascertained by application of the ‘ordinary principles of statutory interpretation’. The Court can then determine whether the provision unjustifiably limits a Charter right. It is only if it does so that s 32(1) ‘has real work to do’. As defined by the Attorney-General and the Commission, the work which s 32(1) can then do is that of ‘re-interpretation … to render the statutory provision Charter-compatible’.
On this view, the interpretation of a statutory provision in light of the Charter involves the following steps:
1.Ascertain the meaning of the relevant provision by applying ordinary principles of statutory interpretation.
2.Determine whether the provision thus construed limits a Charter right.
3.If so, decide whether that limit is a ‘reasonable limit [which] can be demonstrably justified’, under s 7(2) of the Charter (the ‘justification question’).
4.If (but only if) the limit on the right is unjustified, apply s 32(1) of the Charter to determine whether it is possible to reinterpret the relevant provision so that it is compatible with the relevant Charter right.[18]
[18]This approach, and the characterisation of the s 32(1) step as one of ‘reinterpretation’, were first adopted by Bell J in Kracke v Mental Health Review Board [2009] VCAT 646, [65] (‘Kracke’): see [70]–[72] below.
The submission for the Centre, on the other hand, was that s 32(1) must be seen as a ‘cardinal principle of statutory construction’, to be brought to bear in the initial interpretive step. According to the submission:
Where a provision is said to limit a human right, it is wrong to consider, first, whether such limits can be justified under s 7(2), before considering whether it is possible to reinterpret the provision compatibly with human rights under s 32. Rather, where it is alleged that a statutory provision limits human rights, it is necessary to consider whether it is possible to interpret the provision in a way that is compatible with human rights in accordance with s 32 of the Charter; consideration of s 7 only arises in the event that it is not possible to interpret the provision compatibly with human rights under s 32.
These submissions raise two separate issues about the operation of the Charter. The first is whether s 32(1) was intended to create a ‘special’ rule of interpretation, that is, a rule which authorised (and hence required) the court, where necessary, to depart from the meaning which would be arrived at by application of ‘ordinary’ principles of interpretation. We explain this notion of a ‘special’ rule of interpretation further below.[19]
[19]See [37]–[39].
The second issue relates to the point in the analysis at which the question of justification under s 7(2) must be considered. According to both the Attorney-General and the Commission, this question must be decided before s 32(1) is applied. Only if the provision in question is held to limit a Charter right unjustifiably is recourse to s 32(1) necessary. According to the Centre, on the other hand, the justification question does not arise until after the Court has interpreted the provision, including by the application of s 32(1), and decided that it does limit a right.
Summary of conclusions
For reasons which follow, we have reached the following conclusions:
(1)Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.
(2)Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows:
Step 1:Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).
Step 2:Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.
Step 3:If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.
(3)On the view we take of s 32(1), it is not ‘possible’ to interpret s 5 of the DPCS Act, consistently with its purpose, otherwise than as it has been traditionally interpreted – that is, as imposing a reverse legal onus of proof.
(4)Even if (contrary to our view) s 32(1) had been intended to create a ‘special’ rule of interpretation, it would still not have been ‘possible’ to interpret s 5 as imposing only an evidentiary onus. To do so would have been to cross the line from interpretation to legislation, which would be impermissible even on the ‘special’ interpretive approach commanded by s 3(1) of the Human Rights Act 1998 (UK) c 42 (‘HRA’).[20]
[20]See [114]–[118] below.
We return to the question of methodology below.[21] But first it is necessary to explain our conclusion regarding the interpretive obligation in s 32(1) of the Charter.
[21]See [105]–[110] below.
The interpretive obligation in s 32(1)
Section 3(1) of the HRA provides as follows:
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.[22]
As will appear, the House of Lords has characterised the interpretive obligation imposed by s 3(1) of the HRA as ‘very strong and far reaching’. In particular, the House has said that s 3(1) may require the interpreting court to depart from the legislative intention of the Parliament which enacted the provision(s) under scrutiny. In this sense, so it has been held, s 3(1) established a ‘special’ or extraordinary rule of interpretation. ‘It allows the courts to amend legislation and change the choices made by Parliament about how an area of the law will be regulated.’[23]
[22]The reference is to the rights contained in the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, ETS No 5 (entered into force 3 September 1953), which is a Schedule to HRA.
[23]Aileen Kavanagh, ‘The Role of Parliamentary Intention in Adjudication under the Human Rights Act 1998’ (2006) 26 OJLS 179, 192.
This view of s 3(1) was captured in an early HRA decision of the Court of Appeal (Lord Woolf CJ) in Poplar Housing and Regeneration Community Association Ltd v Donoghue,[24] as follows:
It is difficult to overestimate the importance of section 3. It applies to legislation passed both before and after the Human Rights Act 1998 came into force. Subject to the section not requiring the court to go beyond that which is possible, it is mandatory in its terms. In the case of legislation predating the Human Rights Act 1998 where the legislation would otherwise conflict with the Convention, section 3 requires the court to now interpret legislation in a manner which it would not have done before the Human Rights Act 1998 came into force. When the court interprets legislation usually its primary task is to identify the intention of Parliament. Now, when section 3 applies, the courts have to adjust their traditional role in relation to interpretation so as to give effect to the direction contained in section 3. It is as though legislation which predates the Human Rights Act 1998 and conflicts with the Convention has to be treated as being subsequently amended to incorporate the language of section 3.[25]
[24][2002] QB 48, 72.
[25]Ibid 72 (emphasis added).
On this appeal, the submissions of all parties other than the Crown proceeded on the assumption that s 32(1) likewise established a ‘special rule’ of interpretation. The applicant, the Attorney-General, the Commission and the Centre all contended that, even if on ordinary principles of interpretation the language of s 5 of the DPCS Act could not be read otherwise than as expressing a legislative intention to impose a legal burden on an accused person, it was nevertheless ‘possible’ within the meaning of s 32(1) – and hence obligatory – to interpret s 5 as imposing only an evidentiary burden.
Both the Commission and the Centre submitted that the concluding phrase of s 5 could – and hence must – be read as if it provided: ‘… unless the person satisfies the court that there is some evidence to the contrary.’ They acknowledged that this would be a ‘reinterpretation’ of s 5, but submitted that it would not go beyond what was permitted by s 32(1).
Plainly enough, to read s 5 in this way would involve a significant departure from the intent of Parliament as expressed in the words of s 5. Instead of the accused having to satisfy the court ‘to the contrary’ of the deemed possession – by proving on the balance of probabilities that he/she was not in possession – the section as reinterpreted would require only that the accused person satisfy the court that there was evidence showing that he/she was not in possession.
The submission for the Attorney-General was that the Court need not attempt to reformulate the language of s 5.[26] It would be sufficient for the court to hold that the phrase ‘satisfies the court to the contrary’ should be read as imposing only an evidentiary burden on the accused. The rules of the common law would then operate to determine in a particular case whether the accused had discharged that burden.
[26]Cf Ghaidan v Godin-Mendoza [2004] 2 AC 557, 572 (Lord Nicholls) (‘Ghaidan’): ‘The precise form of words read in for this purpose is of no significance. It is their substantive effect which matters.’
The submissions made respectively on behalf of the Attorney-General, the Commission and the Centre cited a number of English cases dealing with s 3(1) HRA. The Attorney-General’s contention that s 32(1) permitted ‘reinterpretation’ drew explicitly on the jurisprudence of the House of Lords regarding s 3(1), as analysed by Beatson et al in Human Rights: Judicial Protection in the United Kingdom.[27] As will appear, particular reliance was placed on the approach of the House of Lords in Ghaidan.[28] The submissions also referred to cases applying the interpretive provisions in the New Zealand Bill of Rights Act 1990 (NZ) (s 6)[29] and in the Constitution of the Republic of South Africa, 1996 (s 39(2)) and the remedial interpretive provisions implied into the Hong Kong Basic Law.[30]
[27](2008) [5.30]–[5.127] (‘Beatson’).
[28][2004] 2 AC 557.
[29]See [62]–[68] below.
[30]HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 608–611. See [58]–[61] below.
The English authorities
We begin with the decision of the House of Lords in Ghaidan,[31] which both the Attorney-General and the Commission submitted should be viewed as defining the correct approach to s 32(1). That case concerned a legislative provision giving a person living with a tenant ‘as his or her wife or husband’ the right to remain in rent-controlled premises after the death of the tenant. By majority, the House held that the provision extended to the same sex partner of a tenant.
[31][2004] 2 AC 557.
The Commission contended that s 32(1) was enacted ‘with full knowledge of, and with an apparent intention to replicate, the approach taken by the House of Lords in Ghaidan.’ As discussed further below, the decision in Ghaidan[32] was relied on by the Human Rights Consultation Committee in the relevant part of its report to the Victorian Government, recommending the inclusion of an interpretive provision in the proposed charter of rights.[33]
[32]Ibid.
[33]Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (November 2005) 82–3. See [73] below.
In Ghaidan,[34] Lord Nicholls of Birkenhead (with whom Lord Steyn, Lord Rodger of Earlsferry and Baroness Hale of Richmond agreed) said:
Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, s 3 may none the less require the legislation to be given a different meaning. The decision of your Lordships’ House in R v A (No 2)[35] is an instance of this. The House read words into [a provision] so as to make that section compliant with an accused’s right to a fair trial … . The House did so even though the statutory language was not ambiguous.
From this it follows that the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation. The question of difficulty is how far, and in what circumstances, section 3 requires a court to depart from the intention of the enacting Parliament. The answer to this question depends upon the intention reasonably to be attributed to Parliament in enacting section 3.[36]
[34][2004] 2 AC 557.
[35][2002] 1 AC 45.
[36]Ghaidan [2004] 2 AC 557, 571 (emphasis added).
Lord Millett dissented in the result but expressed substantially similar views about the operation of s 3(1):
it obliges the court to give an abnormal construction to the statutory language and one which cannot be achieved by resort to standard principles and presumptions.
This is a difficult exercise, for it is one which the Courts have not hitherto been accustomed to perform, and where they must accordingly establish their own ground rules for the first time.
…
It must, therefore, be possible, by a process of interpretation alone, to read the offending statute in a way which is compatible with the Convention.
This does not mean that it is necessary to identify an ambiguity or absurdity in the statute (in the sense of being open to more than one interpretation) before giving it an abnormal meaning in order to bring it into conformity with a Convention right. I respectfully agree with my noble and learned friend, Lord Nicholls of Birkenhead, that even if, construed in accordance with ordinary principles of construction, the meaning of the legislation admits of no doubt, section 3 may require it to be given a different meaning. It means only that the court must take the language of the statute as it finds it and give it a meaning which, however unnatural or unreasonable, is intellectually defensible. It can read in and read down; it can supply missing words, so long as they are consistent with the fundamental features of the legislative scheme; it can do considerable violence to the language and stretch it almost (but not quite) to breaking point.[37]
[37]Ibid 584–5 (emphasis added in part, citations omitted).
Subsequently, in Sheldrake v Director of Public Prosecutions; Attorney-General’s Reference (No 4 of 2002),[38] the House concluded that it was ‘possible’ to read a provision imposing a legal burden of proof on a defendant as imposing only an evidential burden. Lord Bingham of Cornhill said:
Such was not the intention of Parliament when enacting the [relevant provision], but it was the intention of Parliament when enacting section 3 of [HRA].[39]
[38][2005] 1 AC 264 (‘Sheldrake’).
[39]Ibid 314.
Lord Bingham said that the majority opinions in Ghaidan[40] left ‘no room for doubt’ on the following four points:
[40][2004] 2 AC 557.
1. The interpretive obligation under s 3(1) was ‘a very strong and far reaching one and [might] require the court to depart from the legislative intention of Parliament’.
2. A Convention-compliant interpretation under s 3(1) was ‘the primary remedial measure’, and a declaration of incompatibility was ‘an exceptional course’.
3. During the passage of HRA through Parliament, the ‘promoters of the legislation’ told both Houses that it was envisaged that the need for a declaration of incompatibility would rarely arise.
4. Nevertheless, there was a limit beyond which a Convention-compliant interpretation was not possible.[41]
[41]Sheldrake [2005] 1 AC 264, 303–4. Lord Steyn and Lord Phillips agreed with Lord Bingham.
On the last point, Lord Bingham gave the example of R (Anderson) v Secretary of State for the Home Department,[42] where the House had rejected what was said to be a ‘possible’ Convention-compatible interpretation. In that case, Lord Bingham himself had said that to read the provision as proposed
would not be judicial interpretation but judicial vandalism: it would give the section an effect quite different from that which Parliament intended and would go well beyond any interpretive process sanctioned by section 3 …[43]
Lord Steyn said that it was ‘impossible’ to follow the proposed course because it
would not be interpretation but interpolation inconsistent with the plain legislative intent … . Section 3(1) is not available where the suggested interpretation is contrary to express statutory words or is by implication necessarily contradicted by the statute.[44]
[42][2003] 1 AC 837.
[43]Ibid 883.
[44]Ibid 894 (Lord Nicholls, Lord Scott and Lord Rodger agreed with Lord Bingham and Lord Steyn).
Earlier, in Re S,[45] after noting the ‘forthright, uncompromising language’ of s 3(1), Lord Nicholls had emphasised the difference between interpreting and legislating:
The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes, and the amendment of statutes, are matters for Parliament.
Up to this point there is no difficulty. The area of real difficulty lies in identifying the limits of interpretation in a particular case. This is not a novel problem. If anything, the problem is more acute today than in past times. Nowadays courts are more ‘liberal’ in the interpretation of all manner of documents. The greater the latitude in which courts construe documents, the less readily defined is the boundary. … For present purposes it is sufficient to say that a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.[46]
[45][2002] 2 AC 291.
[46]Ibid 313 (emphasis added).
In Sheldrake,[47] Lord Bingham noted that the members of the House in Ghaidan[48] had used a variety of expressions in endeavouring to define the limits on interpretation under s 3(1). Their Lordships had variously said that a Convention-compatible interpretation might not be ‘possible’ if the interpretation:
[47][2005] 1 AC 264.
[48][2004] 2 AC 557.
· would be incompatible with ‘the underlying thrust of the legislation’;[49]
[49]Ibid 572 (Lord Nicholls).
· would not ‘go with the grain’ of the legislation;[50]
[50]Ibid 601 (Lord Rodger).
· would contradict ‘the essential principles’ of the legislation or go beyond its scope;[51]
[51]Ibid.
· involved a choice which was properly a matter for legislative deliberation;[52]
[52]Ibid 572 (Lord Nicholls).
· would be ‘inconsistent with a fundamental feature’ of the legislation;[53]
[53]Ibid.
· would ‘repeal, delete, or contradict the language of the offending statute’;[54]
[54]Ibid (Lord Millett), 586. Similar language was used by Lord Nicholls in Re S [2002] 2 AC 291, 306, and by Lord Hope in R v Lambert [2002] 2 AC 545, 585 (‘Lambert’).
· would change the substance of the provision completely;[55]
[55]Ghaidan [2004] 2 AC 557, 596 (Lord Rodger).
· would remove the ‘pith and substance’ of the provision;[56] or
· would violate a ‘cardinal principle’ of the legislation.[57]
[56]Ibid 597.
[57]Ibid 598 (citing Lord Nicholls in Re S [2002] 2 AC 291); Sheldrake [2005] 1 AC 264, 304.
Lord Bingham commented in Sheldrake[58] that such expressions ‘yield valuable insights, but none of them should be allowed to supplant the simple test enacted in the Act: “So far as it is possible to do so …”.’[59] With respect this is plainly correct, but the very multiplicity of different formulations advanced by their Lordships highlights the inherent difficulty of defining what is and what is not ‘possible’ once ordinary principles of statutory interpretation are discarded. Not surprisingly, English commentators have characterised the decision in Ghaidan[60] as allowing for ‘a wide linguistic freedom in the use of s 3(1)’ and as giving the judiciary ‘a wide discretion over the implied restrictions on the use of s 3(1) ’.[61]
[58][2005] 1 AC 264.
[59]Ibid 304.
[60][2004] 2 AC 557.
[61]Ian Leigh and Roger Masterman, Making Rights Real – The Human Rights Act in its First Decade (2008) 106; 109 (‘Leigh and Masterman’).
Before leaving this consideration of the English authorities, we should refer (as did Tipping J in the Supreme Court of New Zealand in R v Hansen)[62] to the subsequent decision of the House of Lords in R (on the application of Wilkinson) v Inland Revenue Commissioners,[63] which was not cited on this appeal. In that case, the question was whether it was ‘possible’ in the s 3(1) sense to read the gender-specific word ‘widow’ as referring to ‘the more general concept of a surviving spouse’. The Interpretation Act 1978 (UK) c 30 provided for words importing the feminine gender to include the masculine ‘unless the contrary intention appears’. The House considered that the particular statutory context disclosed a clear contrary intention and hence that s 3(1) HRA did not permit the word ‘widow’ to be read as meaning ‘widower’.
[62][2007] 3 NZLR 1, 54 (‘Hansen’): see [64]-[67]; [133] below.
[63][2005] 1 WLR 1718 (‘Wilkinson’).
Lord Hoffman (with whom Lord Nicholls, Lord Hope, Lord Scott and Lord Brown agreed) said:
I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. That would be playing games with words. The important change in the process of interpretation which was made by section 3 was to deem the Convention to form a significant part of the background against which all statutes, whether passed before or after the 1998 Act came into force, had to be interpreted. Just as the ‘principle of legality’ meant that statutes were construed against the background of human rights subsisting at common law … so now, section 3 requires them to be construed against the background of Convention rights. There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. This of course goes far beyond the old-fashioned notion of using background to ‘resolve ambiguities’ in a text which had notionally been read without raising one’s eyes to look beyond it. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But with the addition of the Convention as background, the question is still one of interpretation [emphasis in original] ie, the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute.[64]
[64]Ibid 1723 (citations omitted, emphasis added).
The approach here described is very different from that epitomised by Ghaidan[65] and Sheldrake.[66] First, the task under s 3(1) HRA is described as being ‘the ascertainment of what, taking into account the presumption created by s 3, Parliament would reasonably be understood to have meant by using the words in question’. This may be contrasted with Lord Steyn’s statement in Ghaidan[67] that the UK Parliament had specifically rejected a legislative model ‘requiring a reasonable interpretation’. Secondly, the parallel explicitly drawn here between s 3(1) HRA and the common law interpretive presumption against interference with rights (the so-called ‘principle of legality’[68]) is much closer to the view we have arrived at regarding s 32(1)[69] than anything said in Ghaidan[70] or Sheldrake.[71]
[65][2004] 2 AC 557.
[66][2005] 1 AC 264.
[67][2004] 2 AC 557, 574.
[68]See J Spigelman, ‘Principle of Legality and the Clear Statement Principle’ (2005) 79 ALJ 769, 774-6.
[69]See [101]–[104] below.
[70][2004] 2 AC 557.
[71][2005] 1 AC 264.
We respectfully agree with the following comment by Tipping J in Hansen:[72]
[I]n Wilkinson the balance may have swung back a little from the stance taken in Ghaidan, towards greater emphasis being placed on the need for s 3 to be viewed as mandating a process which ultimately remains one of permissible interpretation.[73]
[72][2007] 3 NZLR 1.
[73]Ibid 54.
Whether the decision in Wilkinson[74] is indeed to be regarded as ‘an implicit repudiation’ of the Ghaidan[75] approach, as one New Zealand commentator has suggested,[76] remains to be seen. Our researches have revealed no subsequent consideration by the English courts of the apparent change of approach in Wilkinson.[77]
[74][2005] 1 WLR 1718.
[75][2004] 2 AC 557.
[76]Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’ (2008) 6 NZJPIL 59, 82.
[77][2005] 1 WLR 1718. See, eg, Doherty v Birmingham City Council [2009] 1 AC 367; R v Keogh [2007] 1 WLR 1500.
The Hong Kong approach
The submission for the Attorney-General also relied on what was said by Sir Anthony Mason NPJ, sitting as a member of the Hong Kong Court of Final Appeal in HKSAR v Lam Kwong Wai.[78] That case also concerned a provision which imposed a reverse onus on a defendant to a criminal charge. Sir Anthony Mason NPJ (with whom the four other members of the Court agreed) held that, on ordinary principles of interpretation, the provision in question imposed a legal onus, not an evidentiary one. That was the meaning which accorded with ‘the legislative intention properly ascertained’.[79] Thus interpreted, the Court said, the provision interfered with the presumption of innocence to an extent which was disproportionate to the legislative object.[80]
[78](2006) 9 HKCFAR 574.
[79]Ibid 606.
[80]Ibid 604.
On this interpretation, the provision was constitutionally invalid and of no effect. In those circumstances, Sir Anthony Mason NPJ concluded, the Basic Law of Hong Kong impliedly conferred power on the Court to make ‘a remedial interpretation’ which went beyond ordinary common law interpretation.[81] His Honour cited R v A(No 2),[82] Ghaidan[83] and Sheldrake[84] as ‘strong English authority’ supporting the view that
remedial interpretation mandates an approach to statutory construction which differs from, and is more radical than, that permitted by accepted principles of common law statutory interpretation.[85]
[81]Ibid 605.
[82][2002] 1 AC 45, 67-8.
[83][2004] 2 AC 557, 570-2.
[84][2005] 1 AC 264, 303-4.
[85]HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, 606.
What made this ‘radical’ approach to interpretation necessary in the case at hand was the importance of avoiding invalidity, as his Honour made clear:
Courts have traditionally, and for very good reason, been reluctant to engage in what may be seen as legislative activity. That is why, in earlier times the courts stopped short of engaging in remedial interpretation which involves the making of a strained interpretation. The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. In that event, they would have no option but to declare the legislation unconstitutional and invalid. Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.[86]
Adopting this ‘remedial’ approach, his Honour concluded that the provision ‘should be read and given effect as imposing on the defendant an evidential burden only’.[87] His Honour noted that the same course had been taken in Lambert[88] and in Sheldrake.[89]
[86]Ibid 610.
[87]Ibid 612.
[88][2002] 2 AC 545.
[89][2005] 1 AC 264.
In RJE v Secretary to the Department of Justice,[90] Nettle JA said that ‘as at present advised’ he would adopt the UK/Hong Kong approach in applying s 32(1). (In the event the interpretation which his Honour arrived at by applying s 32(1) was within the scope of ordinary principles of interpretation.)[91] Warren CJ expressed the same view in DAS v Victorian Human Rights & Equal Opportunity Commission.[92] As will appear, we have come to a different conclusion. The most important difference between the position in Hong Kong and that which applies under the Charter is that a finding of inconsistency between a statutory provision and a Charter right has no effect on the validity of the provision.[93]
[90](2008) 21 VR 526, 557.
[91]Ibid 552.
[92][2009] VSC 381, [53].
[93]Charter s 36(5)(a).
The New Zealand authorities
Section 6 of the New Zealand Bill of Rights Act 1990 (NZ) provides as follows:
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.
Early in the life of the Act, Cooke P said that the ‘preference’ which s 6 commanded would:
come into play only when the enactment can be given a meaning consistent with the rights and freedoms. This must mean, I think, can reasonably be given such a meaning. A strained interpretation would not be enough. [94]
[94]Ministry of Transport v Noort [1992] 3 NZLR 260, 272; see also Police v Smith and Herewini [1994] 2 NZLR 306, 313 (Cooke P).
In 1997, in Quilter v Attorney-General[95] Tipping J (with whom Richardson P, Gault and Keith JJ agreed) said that for the purposes of s 6 a statutory provision could only be given a meaning consistent with a relevant right if the meaning was available ‘by a legitimate process of construction’.[96] In 2007, in Hansen,[97] Tipping J endorsed academic commentary to the effect that s 6 ‘has been read on the basis that an alternative meaning must be reasonably or properly open. It must be fairly open and tenable’.[98]
[95][1998] 1 NZLR 523.
[96]Ibid 581.
[97][2007] 3 NZLR 1.
[98]Ibid 53, referring to Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary (2005).
In his Honour’s view, s 6 ‘cannot be used to give a meaning to an enactment which is clearly contrary to the meaning which Parliament understood its words to convey.’[99] Rather, an approach
which inquires whether a suggested meaning is reasonably possible, seems to me to come as close as possible to capturing the way in which the statutory ‘can’ in s 6 must be applied. It is by this measure of reasonable possibility that I would distinguish at least some English discussions on the subject: they seem to adopt a meaning which is unreasonably possible from an interpretative point of view. I say that because alternative meanings have been found in England, under the aegis of s 3, despite an acknowledgment that this defeats Parliament’s purpose. In England s 3 appears at times to have been construed as mandating a judicial override of Parliament, if Parliament’s meaning is inconsistent with a right or freedom. That, for me, would be to use s 3 (the New Zealand s 6) as a concealed legislative tool. Whether it is appropriate in England is not for me to say, but I am satisfied it is not appropriate in New Zealand.[100]
[99]Ibid 55.
[100]Ibid 55–6 (emphasis in original).
Elias CJ said in Hansen[101] that, for a meaning to be available under s 6, it must be ‘tenable on the text and in the light of the purpose of the enactment.’[102] To similar effect, McGrath J described s 6 as being applicable ‘whenever the Court can identify a tenable meaning of an enactment’.[103] But the Court may not ‘go beyond the reasonably available meaning of [a] word in its legal context’.[104]
[101][2007] 3 NZLR 1.
[102]Ibid 16.
[103]Ibid 62.
[104]Ibid 81.
As Claudia Geiringer has pointed out in her illuminating analysis of Hansen,[105] McGrath J drew a parallel between the interpretive obligation under s 6 and the common law ‘principle of legality’. He said:
[105]Claudia Geiringer, ‘The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen’ (2008) 6 NZJPIL 58, 76.
Section 6 should … be seen as requiring that judges apply the presumption that legislation is to be interpreted in accordance with fundamental rights, as part of the statutory reassertion of the importance of New Zealand’s commitment to human rights in the interpretation exercise, which requires an approach to interpretation which is sympathetic to protected rights.
…
To qualify as a meaning that can be given under s 6 what emerges must always be viable, in the sense of being a reasonably available meaning on that orthodox approach to interpretation. When a reasonably available meaning consistent with protected rights and freedoms emerges the Court must prefer it to any inconsistent meaning.[106]
[106]Hansen [2007] 3 NZLR 1, 80.
As Ms Geiringer notes, Elias CJ had drawn the same parallel in earlier decisions under the Bill of Rights Act 1990 (NZ). Thus, in Ngati Apa Ki Te Waipounamu Trust v The Queen,[107] her Honour referred to specific rights contained in the Act and said:
Such basic rights cannot be overridden by general or ambiguous words in a statute … This principle of legality, recognised by the common law, has been expressly enacted by s 6 of the New Zealand Bill of Rights Act 1990.[108]
Similarly, in R v Pora,[109] the Chief Justice had said:
By s 6 the New Zealand Parliament has adopted a general principle of legality … . Such principle was applied as a principle of the common law before the United Kingdom Human Rights Act 1998 …[110]
[107][2000] 2 NZLR 659.
[108]Ibid 675.
[109][2001] 2 NZLR 37.
[110]Ibid 50.
Was s 32(1) intended to replicate s 3(1) HRA?
For reasons which follow, we have concluded that the Victorian Parliament did not intend s 32(1) to be a ‘special’ rule of interpretation in the Ghaidan[111] sense.The submission that s 32(1) was intended to replicate s 3(1) HRA, and to be applied in the same way, cannot be sustained.
[111][2004] 2 AC 557.
The language of s 32(1)
It is convenient to begin with the decision in Kracke,[112] on which both the Attorney-General and the Commission relied. In that case Bell J[113] concluded that s 32(1) of the Charter and s 3(1) HRA ‘express the same special interpretative obligation and are of equal force and effect.’[114] Bell J expressed the view that the insertion into s 32(1) of the phrase ‘consistently with their purpose’:
was intended to put into s 32(1) the approach to s 3(1) adopted by the House of Lords in Ghaidanv Godin-Mendoza (which had been decided before the Charter was enacted).[115]
In his Honour’s view:
The boundaries identified in Ghaidanv Godin-Mendoza, on which the purpose requirement [in s 32(1)] is based, provide an adequate balance between giving the special interpretive obligation full force and proper scope on the one hand and safeguarding against its impermissible use on the other. Adopting narrower boundaries would weaken the operation of s 32(1) in a way that was not intended.[116]
[112][2009] VCAT 646.
[113]In his capacity as President of the Victorian Civil and Administrative Tribunal.
[114]Kracke [2009] VCAT 646, [215].
[115]Ibid [214] (citations omitted).
[116]Ibid [216].
His Honour also invoked Ghaidan[117] and Sheldrake[118] in holding that:
The special interpretive obligation in s 32(1) is like its English parent – ‘very strong and far reaching’, and may even require ‘the court to depart from the legislative intention of Parliament’.
Bell J continued:
Because the obligation is to make legislation conform to transcendent human rights principles wherever possible, the role of the courts is fundamentally different to their role under the standard principles of interpretation. However, that role is still interpretation, not amendment. In consequence, there is a ‘limit beyond which a [human rights compliant] interpretation is not possible …’[119]
[117][2004] 2 AC 557.
[118][2005] 1 AC 264.
[119]Kracke [2009] VCAT 646, [218] (emphasis added, citations omittted).
Bell J referred[120] to the report of the Human Rights Consultation Committee, which recommended that the interpretive provision in the proposed Charter should read as follows:
So far as it is possible to do so, consistently with its purpose, a Victorian law must be read and given effect to in a way that is compatible with human rights.[121]
[120]Ibid [215].
[121]Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (November 2005) 82. The draft bill attached to the Report used slightly different language.
The Committee’s draft adopted the language of s 3(1) HRA but inserted the additional requirement of consistency with purpose. The Committee said of its draft:
By making this [ie the requirement of consistency with purpose] plain, the courts would be provided with clear guidance to interpret legislation to give effect to a right so long as that interpretation is not so strained as to disturb the purpose of the legislation in question. This is consistent with some of the more recent cases in the United Kingdom, where a more purposive approach to interpretation was favoured. In the United Kingdom House of Lords decision in Ghaidanv Godin-Mendoza, Lord Nicholls of Birkenhead said
‘the meaning imported by application of s 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must … “go with the grain of the legislation”.’
Or as Lord Rodger of Earlsferry stated:
‘It does not allow the Courts to change the substance of a provision completely, to change a provision from one where Parliament says that x is to happen into one saying that x is not to happen.’[122]
[122]Ibid 82-3.
With great respect to Bell J, we do not agree that the insertion into s 32(1) of the words ‘consistently with their purpose’ was intended to ‘put into s 32(1) the approach to s 3(1) adopted by the House of Lords in Ghaidan’. In our view, the insertion of those words of limitation stamped s 32(1) with a quite different character from that of s 3(1) HRA, which was said in Ghaidan[123] to require the court where necessary to ‘depart from the intention of the Parliament which enacted the legislation’.[124] In our opinion the inclusion of the purpose requirement made it unambiguously clear that nothing in s 32(1) justified, let alone required, an interpretation of a statutory provision which overrode the intention of the enacting Parliament.[125] (The Court of Appeal of the Australian Capital Territory reached a similar conclusion in relation to the similarly-worded s 30 of the Human Rights Act 2004 (ACT)).[126]
[123][2004] 2 AC 557.
[124]Ibid 571 (Lord Nicholls).
[125]See further [111]–[113] below.
[126]R v Fearnside (2009) 165 ACTR 22, 41–2 (Besanko J with whom Gray P and Penfold J agreed).
Under s 32(1), statutory provisions must be interpreted consistently with human rights ‘so far as it is possible to do so consistently with their purpose’. The test is one of consistency with the purpose of the provision(s) in question. This focus on the purpose of the provision being interpreted may be contrasted with an approach which concerned itself with the purpose of the legislation as a whole, as embodied, for example, in s 35 of the Interpretation of Legislation Act 1984 (Vic):
In the interpretation of a provision of an Act or subordinate instrument –
(a)a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object.[127]
[127]Emphasis added.
But s 32(1) was not drafted in those terms. It requires that interpretation under the Charter accord with the purpose of the provision(s) being interpreted. In the circumstances, this must be taken to have been a deliberate choice of language, though in the present case it makes no difference to the ultimate conclusion.[128]
[128]See [114] below.
Our view that s 32(1) does not permit a departure from the intention of the enacting Parliament is reinforced by the fact that s 32(1) requires provisions to be ‘interpreted’ compatibly with human rights. ‘Interpretation’ is what courts have traditionally done. It seems improbable that Parliament would have used the word ‘interpret’ in s 32(1) if it had intended to require courts to do something quite different. As Kentridge JA commented trenchantly in State v Zuma,[129] ‘If the language used by the lawgiver is ignored in favour of a general resort to “values” the result is not interpretation, but divination.’
[129]1995 (4) BCLR 401. The comment was made in the context of interpreting the requirement in s 3 of the South African Constitution to interpret protected human rights broadly.
Our view of the effect of s 32(1) is reinforced by what was said in Parliament when the Charter bill was debated. We now turn to those debates.
What did the Victorian Parliament intend?
The intention of Parliament is, of course, to be discerned from the statute itself, not from the views expressed by members of Parliament during the debate which preceded enactment. As Dawson J said in Mills v Meeking:[130]
Individual members of Parliament, or even the government, do not necessarily mean the same thing by voting on a Bill or, in some cases, anything at all. The collective will of the legislature must therefore be taken to have been expressed in the language of the enactment itself, even though that language has been selected by the draftsman, who is not a member of Parliament.[131]
[130](1990) 169 CLR 214, 234.
[131]See also Singh v The Commonwealth (2004) 222 CLR 322 (‘Singh’), 335–6 (Gleeson CJ), 385 (Gummow, Hayne and Heydon JJ).
Nevertheless, it is now established – both at common law[132] and by statute[133] – that resort may be had to Parliamentary debates for such assistance as they may properly provide. As already noted,[134] the House of Lords in Ghaidan[135] attributed significance to what had been said in the British Parliament about s 3(1) HRA.[136] In the present case, the Parliamentary debates emphatically confirm what the words of s 32(1) convey about ‘the collective will of the legislature’.
[132]Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (6th ed, 2006) [3.7].
[133]Interpretation of Legislation Act 1984 (Vic) s 35(b).
[134]See [49] above.
[135][2004] 2 AC 557.
[136]See [91] below.
The Attorney-General’s Second Reading Speech said of the clause which became s 32(1):
Clause 32 of the bill recognises the traditional role for the courts in interpreting legislation passed by Parliament. While this bill will not allow courts to invalidate or strike down legislation, it does provide for courts to interpret statutory provisions in a way which is compatible with the human rights contained in the Charter, so far as it is possible to do so consistently with their purpose and meaning. It allows for international law and international judgments to be considered in interpreting a statutory provision.[137]
[137]Victoria, Parliamentary Debates, Legislative Assembly, 4 May 2006, 1293 (Mr Hulls, Attorney-General).
What is most striking about this passage is the absence of any suggestion that s 32(1) would establish a new paradigm of interpretation, under which courts would be required (where necessary to secure human rights compatibility) to depart from the ordinary meaning of a statutory provision and hence from the intention of the Parliament which enacted that provision. What the Minister said was to precisely the opposite effect. He described s 32(1) as a provision which ‘recognises the traditional role for the courts in interpreting legislation’.
Had it been the Government’s intention that Victorian courts be given a role under the Charter which was ‘fundamentally different [from] their role under the standard principles of interpretation’,[138] the Minister would have been obliged to say so. He would have needed to point out that what was proposed in s 32(1) was a departure from ‘the traditional role [of] the courts in interpreting legislation passed by Parliament’.[139] Having made that clear, the Minister would have had to be specific about the nature and extent of the departure, presumably by drawing on examples from the UK jurisprudence.
[138]Kracke [2009] VCAT 646, [218].
[139]Which is how the Court of Appeal in Poplar Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48, described the effect of s 3(1) HRA: see [38] above.
It is also notable that the Minister spoke of s 32(1) as requiring provisions to be interpreted compatibly with Charter rights ‘so far as it is possible to do so consistently with their purpose and meaning’. Although the words ‘and meaning’ do not appear in s 32(1) itself, the fact that the Minister used them in his Second Reading Speech makes it even clearer that Parliament had no intention of authorising (or requiring) interpretations which would depart from the meaning of a provision arrived at by ordinary principles of interpretation. The Parliament thus enacted s 32(1) after having been told, quite explicitly, by the responsible Minister that, in performing their interpretive function under the Charter, the courts would be constrained both by the purpose of the provision being interpreted and by the meaning of the words in the provision. (In the light of these clear statements to the Parliament, it is puzzling that the submission advanced on behalf of the Attorney-General in this proceeding should have propounded such a different view of s 32(1)).
Nor did the Explanatory Memorandum for the Charter bill suggest that ‘abnormal’ interpretations[140] were in contemplation. After restating the terms of clause 32(1), the Memorandum stated:
The object of this sub clause is to ensure that courts and tribunals interpret legislation to give effect to human rights. The reference to statutory purpose is to ensure that in doing so courts do not strain the interpretation of legislation so as to displace Parliament’s intended purpose or to interpret legislation in a manner which avoids achieving the object of the legislation.[141]
By contrast, not only does s 3(1) HRA permit a ’strained interpretation’[142] but it has been held to go much further, requiring the court where necessary to depart entirely from the plain meaning of the provision in question.
[140]Cf [47] above.
[141]Charter of Human Rights and Responsibilities (as sent print), Explanatory Memorandum, 16 June 2006, 23.
[142]R v A (No 2) [2002] 1 AC 45, 68 (Lord Steyn).
It is hardly surprising that the Attorney-General should have emphasised the traditional nature of the interpretive function conferred on the courts by s 32(1). As the debate on the Charter bill in the Victorian Parliament demonstrated very clearly, the Government was at pains to dispel concerns that the enactment of the Charter would involve an unacceptable transfer of power to the judiciary. Such concerns have for a number of years featured prominently in public discourse in Australia about the desirability (or otherwise) of legislative protection of human rights.[143] The Victorian Human Rights Consultation Committee had reported to the government that submissions received by the Committee argued that ‘enacting a Charter would take power away from the Parliament and give unelected judges too much power.’[144]
[143]See, eg, ACT Bill of Rights Consultative Committee, Towards An ACT Human Rights Act: Report of the ACT Bill of Rights Consultative Committee (May 2003) [2.97]–[2.103]; James Allan, ‘The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism’ (2006) 30 MULR 906, 908–12; footnote 1.
[144]Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (November 2005) 15.
Thus, in his response to the Minister’s Second Reading Speech, the shadow Attorney-General quoted with approval (as did a former Opposition Leader later in the debate)[145] the following statement made in January 2001 by Mr Bob Carr, then Labor Premier of New South Wales:
[145]Victoria, Parliamentary Debates, Legislative Assembly, 15 June 2006, 2206 (Dr Napthine).
A bill of rights would pose a fundamental shift in (our political) tradition, with Parliament abdicating its important policy-making functions to the judiciary.
The shadow Attorney continued:
If we pass this Charter of human rights, we will shift the power to the judiciary – unelected officials – to involve itself in all sorts of political issues.
…
But the most profound thing that concerns me is that we are introducing something that is effectively fundamental law in this State. Every single Act of Parliament – past, present and future – is going to have to be interpreted in light of human rights. Those sorts of matters can be involved. A prisoner has a common law right at the moment to have a trial set aside on the basis of delay. Now you have this other provision [of the Charter] that says you can do so if you have an unreasonable delay. … We will be devolving those political questions to the judiciary, with dire consequences.[146]
[146]Victoria, Parliamentary Debates, Legislative Assembly, 13 June 2006, 1978-80 (Mr McIntosh, shadow Attorney-General).
The first speaker in support of the Bill was the Chair of the Parliamentary Committee on the Scrutiny of Acts and Regulations. Like the Attorney-General, she sought to emphasise the limits on the powers which the Charter would confer on the courts:
Clearly the nature of the Bill is educative, and it preserves the sovereignty of our elected Parliament, contrary to many misconceptions that have been bandied around this House today. The Supreme Court will not be able to invalidate a Victorian law when a statutory provision is deemed by it to be inconsistent with the Charter, although the Supreme Court will be able to make a declaration of inconsistent interpretation if it finds that a statutory provision cannot be interpreted consistently with a human right.[147]
And again:
We will … be supporting a model which is similar in operation to the New Zealand Bill of Rights Act and the United Kingdom Human Rights Act in that the Courts in both of those countries cannot invalidate primary legislation. The main function of the human rights legislation is to alert the Government and the Parliament to human rights inconsistencies.[148]
[147]Victoria, Parliamentary Debates, Legislative Assembly, 13 June 2006, 1984 (Ms D’Ambrosio).
[148]Ibid 1985 (emphasis added).
Another Minister, speaking in support of the Charter, said:
A principal feature of the Bill is that it accords with a Parliamentary-based model of human rights protection. We understand that Parliament remains the final and sovereign institution in our democracy, and this Bill does nothing – I repeat, nothing – to undermine that.[149]
[149]Victoria, Parliamentary Debates, Legislative Assembly 13 June 2006, 1993 (Mr Wynne).
According to yet another Government member, the Charter legislation:
… finds the right balance, because it sets out the rights and responsibilities of Victorians but sets them out in a way that maintains Parliamentary sovereignty and allows the Courts in appropriate circumstances to make declarations about whether legislation meets the standards of human rights but does not allow the Courts to invalidate those laws. It still requires the Parliament to address that question to determine whether or not it wishes to amend those laws or to make a statement about why in a particular circumstance those Parliamentary laws should in some way or another not meet a particular human rights standard.
…
Doing it in the way that we have with this legislation … will mean that the Parliament remains the sovereign body and the Courts have the appropriate advisory role.[150]
[150]Victoria, Parliamentary Debates, Legislative Assembly 13 June 2006, 1999–2000 (Mr Lupton).
For the Opposition, the shadow Treasurer described the Bill as ‘dangerous’, arguing that the proposed Charter would
… transfer legislative power from the Parliament to the judiciary. It will throw a new wild card into the interpretation of every statute on our books. It will force legislation to be interpreted against this collection of untried and untested verbiage and will therefore diminish the strength of our common law background, which has evolved over many centuries and strikes the sorts of balances and nuances that this legislation fails to do.
It is also going to transfer de facto legislative power from the Parliament to the judiciary by granting an enormous scope for judicial discretion in interpretation, and therefore it will transfer what should be political and community issues debated in the public arena and decided by Parliament into the hands of the judiciary.[151]
[151]Victoria, Parliamentary Debates, Legislative Assembly 13 June 2006, 2000 (Mr Clark) (emphasis added).
What was said in the Victorian Parliament about s 32(1) and the role of the courts is in marked contrast to what was said in the UK Parliament about s 3(1) HRA.[152] In Ghaidan,[153] Lord Steyn said:
Parliament had before it the mischief and objective sought to be addressed, viz the need ‘to bring rights home’. The linch-pin of the legislative scheme to achieve this purpose was section 3(1). Rights could only be effectively brought home if section 3(1) was the prime remedial measure, and section 4 a measure of last resort. How the system modelled on the EEC interpretative obligation would work was graphically illustrated for Parliament during the progress of the Bill through both Houses. The Lord Chancellor observed that ‘in 99% of the cases that will arise, there will be no need for judicial declarations of incompatibility’ and the Home Secretary said ‘We expect that, in almost all cases, the courts will be able to interpret the legislation compatibly with the Convention.’ … . It was envisaged that the duty of the court would be to strive to find (if possible) a meaning which would best accord with Convention rights. This is the remedial scheme which Parliament adopted.
[152]As to the significance of differing legislative histories in this context, see A Geddis and B Fenton: ‘Which is to be Master? – Rights-Friendly Interpretation in New Zealand and the United Kingdom’ (2008) 25 Ariz J Intl & Comp Law 733, 761-3.
[153][2004] 2 AC 557, 575.
Unlike the United Kingdom Parliament, the Victorian legislature was not impelled by the objective of ‘bringing home’ rights already enforceable under an international convention. Nor was there any suggestion in the Victorian Parliament that the interpretive function of the courts under s 32(1) would be ‘the prime remedial measure’. On the contrary, as we have seen, the debate focused almost exclusively on the function of the court in identifying legislative inconsistency with human rights and then making a declaration which – it was repeatedly emphasised – would not affect the validity of the legislation. Far from the making of a declaration of inconsistency being seen as a ‘last resort’, that procedure was treated in the debates as epitomising the intended relationship between the courts and the legislature.[154]
[154]Cf R v A (No 2) [2002] 1 AC 45, 68 (Lord Steyn): ‘A declaration of incompatibility is a measure of last resort. It must be avoided unless it is plainly impossible to do so.’
This is not surprising, in our view, given that the Charter is said to exemplify the ‘dialogue model’ of human rights legislation.[155] In his Second Reading Speech, the Attorney-General said that the Bill was based
on human rights laws that now operate successfully in the Australian Capital Territory, the United Kingdom and New Zealand. Importantly, it is nothing like the United States Bill of Rights. This Bill promotes a dialogue between the three arms of the government – the Parliament, the executive and the courts – while giving Parliament the final say. Unlike the United States, courts will not have the power to strike down legislation.[156]
The scope of the directions which a judge must give is defined by – and limited to – ‘the real issues’ in the trial. As this Court said in R v AJS:[243]
[243](2005) 12 VR 563, 577.
Axiomatically, it is the responsibility of the trial Judge in every jury trial -
(a) to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
In confining his directions on possession to the issue of knowledge, his Honour discharged this responsibility fully. That was the only issue in the trial. Unsurprisingly, no exception was taken to this aspect of the charge.
Sub-grounds 2(d) and (e) draw attention to the difference in operation between s 5 of the DPCS Act (which reverses the onus of proof with respect to possession) and s 73(2) of the Act (which treats possession of a traffickable quantity of drugs as prima facie evidence of trafficking). It is said that the trial judge ought to have directed the jury that
the applicant could not have the drug in her possession for sale, and therefore could not be guilty of trafficking, unless the prosecution proved beyond reasonable doubt that she knew of the presence of the drug.
It is also said that the judge failed to direct adequately on s 73(2).
The identical submission was made – and rejected – in R v Georgiou (‘Georgiou’).[244] There, as here, the argument relied on what was said by Callaway JA in Tragear.[245] But, as Robson AJA (with whom Neave and Redlich JJA agreed) explained in Georgiou,[246] what was said in Tragear was referable to the issues as they had been defined in that particular trial. Robson AJA said:
The applicant suggests there is tension between R v Tragear and R v Hiep Tan Tran.[247] In Tran’s case, the prima facie evidence was of such a large quantity that the only commonsense conclusion was that the accused had it for commercial purposes. There was no issue that if he did have possession of it that he did not know what it was. In R v Tragear that was the very issue. Although, the accused may have failed to rebut the deemed possession, the onus still rested on the Crown to establish beyond reasonable doubt that he was trafficking and thus knew the cocaine was in his possession and meet the defence that he did not know the substance was cocaine. I do not see any tension between R v Tragear and R v Hiep Tan Tran.[248]
[244][2009] VSCA 57, [48].
[245](2003) 9 VR 107, 117.
[246]Georgiou [2009] VSCA 57, [56]–[61].
[247][2007] VSCA 19.
[248]Georgiou [2009] VSCA 57, [59] (emphasis added).
The present submission must be rejected, for the same reasons. In the present case, it was never contended by the defence that, if the applicant failed to persuade the jury that she did not have possession of the drugs found in the apartment, she nevertheless lacked the relevant intent, that is, to possess the drugs for sale. Quite the contrary. The trial judge had provided counsel with a draft of his proposed charge in advance. Neither counsel raised any objection to the content of the draft. Relevantly for present purposes, defence counsel said:
… [I]f I can fairly say, your Honour, I haven’t run the case on the basis [of] anything other than the element of possession. … It’s not one of those cases where I’ve run an argument where, ‘We didn’t possess it but if we did possess it we didn’t intend to sell it.’ That would be forensic suicide as I see it and I haven’t run that.
This was exemplary candour on counsel’s part. As he acknowledged, this was a single issue case, concerned with the applicant’s knowledge of the presence of the drugs. There was no issue about her intention with respect to the drugs if she failed to disprove possession. As defence counsel here conceded, the prima facie evidence of trafficking (which proof of possession would afford) was sufficient, in the absence of any evidence to the contrary, to establish mens rea.
In our view, these grounds of appeal ought not to have been advanced. When regard is had to the way in which the trial was conducted, to defence counsel’s very clear definition of the (single) issue, and to the very clear line of recent authority in this Court, these grounds had no reasonable prospect of success.
No directions on complicity
Ground 3 was in these terms:
The learned judge erred in failing to direct on complicity, since the reality of the prosecution case was that the applicant was a party to Mr Markovski’s involvement in drug trafficking.
This ground, too, must be rejected. Contrary to the contention which it advances, the ‘reality’ of the prosecution case was that the applicant was said to be a principal in her own right. As we have noted, the defence case was conducted accordingly.
It is true that the prosecutor, in his opening address, described the drug trafficking operation as a joint enterprise. He said:
The Crown case is that she was acting in a joint enterprise with Markovski whom she was living with, who was cohabiting with her, and she was supplying the premises and the facilities and he was doing the hard labour, if you like, in relation to the trafficking of the drugs …
But, as we have pointed out, the trial thereafter concentrated on the single issue of the applicant’s knowledge of the presence of the drugs. The case against her was not that she was complicit in Markovski’s trafficking by sale. Rather, it was the much more straightforward case that she was trafficking in her own right, by being in possession for sale.
Senior counsel for the applicant made this very point on the plea, emphasising as a mitigating factor that the applicant had not been convicted of participation in Markovski’s trafficking.[249] In the light of the position adopted – to her advantage – on the plea, the applicant can hardly be heard now to contend that some different case was run against her.
[249]See [197] below.
In any event, the contention is untenable. If the case against the applicant had been that she was complicit in Markovski’s trafficking, both the basis of the trafficking charge and the conduct of the trial would have been different. As to the first of these, the applicant would have been dealt with as a seller (by reason of her complicity in Markovski’s offence),[250] not as a possessor for sale (in her own right). The prosecutor’s opening was unambiguously clear on this point:
So what the Crown is alleging is that the accused had in her possession for sale methylamphetamine, and that is the basis on which the trafficking is put. It is not alleged that she actually went out and sold it or she offered it to anyone. What is alleged is that she had it in her possession for sale and that by virtue of that she is guilty of trafficking.
[250]Crimes Act 1958 (Vic) s 323.
As to the second, it would not have been possible for the conduct of the trial to be confined – as it was – to the single issue of the applicant’s knowledge of the presence of the drugs. If the case against her had been, in truth, a joint enterprise case, the prosecution would have had to lay the evidentiary foundation to establish the necessary elements – most importantly, an agreement between the applicant and Markovski to carry out the offence of trafficking by sale. Nothing of that kind occurred. It is true that in cross-examination the applicant was challenged about the improbability of her assertion that she knew nothing of Markovski’s drug dealing activities. But it is clear from the context that the object of this cross-examination was not to establish her complicity in those activities. Rather it was to show that her denials of any knowledge of the presence of the drugs were not to be believed, and to establish beyond reasonable doubt that she was in possession for sale.
In short, this was not in truth a case of joint enterprise at all.[251] It is therefore wholly unsurprising that neither counsel objected to the absence of any complicity direction from the draft charge.
[251]A similar conclusion was reached in R v Doan (2001) 3 VR 349, 353–4 (‘Doan’) (Charles JA with whom Batt and Vincent JJA agreed).
In the course of argument on the appeal, senior counsel for the Director (who had been the trial prosecutor) conceded that he had opened the case as a ‘joint enterprise’ case and that the normal directions on complicity should therefore have been given. This was a surprising concession, as it was directly contrary to counsel’s own written submission. According to that submission, the applicant had been presented as a principal in her own right, being in possession for sale, and it was therefore ‘unnecessary to rely on concepts of complicity’. For the reasons we have given, the written submission was correct and the oral concession should not have been made.
Cross-examination on quantity
Ground 4 is in these terms:
A miscarriage of justice resulted from the conduct of the trial generally, and in the cross-examination of Mr Markovski, on the basis that there was any (or 325.8 grams of) methylamphetamine in the Moccona jar, given that it was later accepted by the prosecutor that ‘with no analysis of purity … it is effectively impossible to say what was contained within that jar.’
The prosecutor opened the case on the basis that a Moccona coffee jar found in the applicant’s apartment contained 325.8 grams of methylamphetamine. The prosecutor later put into evidence a formal admission by the applicant, which stated the position more accurately, as follows:
In the kitchen cupboard above the sink a Moccona coffee jar containing 325.8 grams of a substance containing methylamphetamine was located. The purity of methylamphetamine was not determined.
Mr Markovski was cross-examined on the basis that the coffee jar contained methylamphetamine. On the plea, the prosecutor acknowledged that, as the purity of the methylamphetamine had not been analysed, it was ‘effectively impossible to say what was contained within that jar’.
The submission for the applicant was that there was ‘a grave risk’ that Mr Markovski’s credit had been damaged by the cross-examination regarding the contents of the coffee jar when ‘the factual basis for it was not open’. This was said to have given rise to a miscarriage of justice. We do not agree. Although the prosecutor’s cross-examination on this point began with the erroneous assertion that the jar contained 325.8 grams of methylamphetamine, defence counsel promptly corrected him, by pointing to the terms of the admission made by the applicant, that the jar contained ‘325.8 grams of a substance containing methylamphetamine’. Mr Markovski was then asked ‘what connection’ he had had with the coffee jar. He said he could not recall. He said that the jar contained ‘only some substance but … not drugs.’
This was but a short section of a much longer cross-examination. Having regard to the other, more significant, issues going to Mr Markovski’s credit, this matter was of marginal significance at best. There is no basis, in our view, for contending that there was a miscarriage of justice.
Alternative verdict of possession
Ground 5 was in these terms:
Given the evidence, the issues at trial and the prosecution’s reliance on s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic), the learned judge erred in failing to leave the alternative verdict of possession of a drug of dependence pursuant to s 73(1) of that Act and s 421(2) of the Crimes Act 1958 (Vic).
When the trial began, the applicant was arraigned on one count of possession and one count of trafficking. The prosecutor then filed over a new presentment, alleging a single count of trafficking. The submission for the applicant was that the judge should nevertheless have left to the jury the alternative verdict of possession pursuant to s 73(1) of the DPCS Act and s 421(2) of the Crimes Act 1958 (Vic). According to the written submission:
Since the trafficking was put exclusively on the basis of possession for sale, the offence of possession was a necessarily included alternative. In the circumstances of this case, had the jury been left with the alternative verdict as a possibility, they could well have reached the position that they were not satisfied on the balance of probabilities that the applicant did not possess the drugs but equally were not satisfied beyond reasonable doubt that she was aware of or intended to possess the drugs, and therefore could not find her guilty of trafficking but guilty of possession.
In our view, this submission must be rejected, for reasons similar to those given in relation to the earlier grounds. In short, the alternative verdict was never a possibility, given the way this trial was run. As already noted, defence counsel disclaimed any suggestion of an intermediate position whereby the applicant might be found to have been in possession but nevertheless not to have had the requisite intent. That having been the case conducted before the jury, there were only two possible outcomes – either a conviction on the trafficking count or an acquittal. This ground fails.[252]
[252]See Doan (2001) 3 VR 349, 360.
Unsafe verdict
Ground 6 is in these terms:
The verdict of guilty is unsafe in the sense that:
(a)an aggregate of the errors or defects identified in Grounds 1–4 caused the trial to miscarry; and/or
(b)it is unreasonable or cannot be supported having regard to the evidence.
Since we have rejected all other grounds, ground 6(a) must necessarily fail.
As to ground 6(b), the submission for the applicant was in these terms:
[I]n view of the sworn evidence of the applicant and Mr Markovski, the evidence of good character, the absence of forensic evidence connecting the applicant to the drugs and the absence of any surveillance evidence connecting her to the activities of Mr Markovski and others, it was not open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was aware of the drugs, had any intention to possess them or was aware of or party to Mr Markovski’s trafficking, such that she could not be guilty of trafficking.
We have reviewed the full record of the trial. In our view, it was well open to a properly instructed jury to be satisfied beyond reasonable doubt that the applicant was in possession of the drugs for sale and hence was guilty of the count of trafficking. This ground must be rejected.
It follows that the application for leave to appeal against conviction must be refused.
PART III – SENTENCE APPEAL
As noted earlier, the maximum penalty for the offence of which the applicant was convicted is 15 years’ imprisonment. She was sentenced to two years and three months’ imprisonment, with a non-parole period of 18 months.
The first ground contends that the sentencing judge erred in sentencing the applicant on the footing that the amount of drugs in her possession represented ‘nearly 80 per cent of a commercial quantity of methylamphetamine.’[253] It is conceded by the Crown that this was an error, and a material one, such that the exercise of the sentencing discretion is vitiated.
[253]R v Momcilovic (Unreported, County Court of Victoria, Judge Murphy, 20 August 2008) [16].
That concession was rightly made, in our view. The applicant’s formal admission was that
a total of 719 grams of a substance containing methylamphetamine was located in the following amounts.
Of this total, 325.8 grams represented the contents of the coffee jar referred to earlier. On the plea, the prosecutor declared – quite properly – that this quantity should be disregarded, since there had been no analysis of the amount of methylamphetamine in the jar. That left a total of approximately 394 grams ‘of a substance containing methylamphetamine’ as the basis for sentence. The prosecutor submitted, and the judge accepted, that this material had a wholesale value of approximately $100,000 and a retail value of approximately $300,000.
The judge sentenced – correctly – on the basis that the quantity the subject of the applicant’s trafficking was 394 grams of (a substance containing) methylamphetamine. At the time of sentencing, the commercial quantity of methylamphetamine (in a mixture) was 1.25 kilograms. As counsel for the applicant pointed out on the appeal, this meant that the quantity trafficked by the applicant was only 31 per cent of a commercial quantity. With respect to the judge, it seems likely that the error arose because, by the time of sentencing, the commercial quantity for a mixture containing methylamphetamine had been reduced to 500 grams. Had that been the applicable quantity then the relevant amount would, as his Honour said, have represented nearly 80 per cent of a commercial quantity.
It follows that the applicant must be resentenced. It is relevant to refer here to the matters relied on to support a separate ground of appeal, that the sentence was manifestly excessive. The applicant relies on the following matters:
(a) the prosecution concession that her involvement was at the lower end of the spectrum of culpability;
(b) her absence of prior convictions;
(c) the positive evidence of her good character;
(d) the relationship of interdependence between the applicant and Mr Markovski and ‘its contribution to her toleration of her partner’s offending’;
(e) the judge’s finding that the applicant’s post-traumatic stress had been exacerbated and that her ‘major depressive disorder of moderate clinical severity’ was a factor which called for some moderation of the principle of general deterrence;
(f) the risk of automatic forfeiture of the applicant’s property; and
(g) the likely loss of her career as an intellectual property consultant.
It was submitted on the plea that the judge should impose a wholly suspended sentence.
It is necessary to consider the sentences imposed on the co-offenders – that is, Mr Markovski, and others involved with him in the trafficking of methylamphetamine.
Mr Moir was sentenced to be imprisoned for 18 months on count 1 (trafficking methylamphetamine between 4 and 14 January 2006), which was the count with the closest link to the applicant’s offence. Mr Moir received terms of imprisonment on two other counts of trafficking in cocaine and cannabis, for which he received an extra seven months’ cumulation, making a total effective sentence of 25 months’ gaol; and a non-parole period of 15 months was fixed. Mr Moir pleaded guilty but had relevant prior convictions. In September 2004, he had been sentenced to a term of eight months’ imprisonment, to be served by way of an intensive correction order, on charges of trafficking amphetamines and trafficking MDMA.
Mr Sheen was sentenced to be imprisoned for two years on count 1 (trafficking methylamphetamine between 30 November 2005 and 14 January 2006), which was the count with the closest link to the applicant’s offence. Mr Sheen received terms of imprisonment on two other counts of trafficking in cocaine and cannabis, for which he received an extra seven months’ cumulation, making a total effective sentence of imprisonment for two years and seven months; and a non-parole period of 20 months was fixed. Mr Sheen had also pleaded guilty but he too had relevant prior convictions, including a conviction sustained in October 2005 for trafficking MDMA for which he was sentenced to three months’ imprisonment to be served by way of an intensive correction order, and one in 1990 for trafficking in cannabis (and on related charges) for which he was fined.
Mr Markovski was sentenced to be imprisoned for four years on count 1 (trafficking methylamphetamine between 9 December 2005 and 14 January 2006), which was the count with the closest link to the applicant’s offence. This offence included not only the drugs found at the premises on 14 January 2006, but also the trafficking in methylamphetamine disclosed by the telephone surveillance over the previous five weeks. Mr Markovski received a sentence of two years and six months on another count of trafficking in cocaine over the same period, for which he received an extra 18 months’ cumulation, making a total effective sentence of five years and six months’ gaol; and a non-parole period of three years and six months was fixed. He had pleaded guilty but had relevant prior convictions. In November 1996, he had been sentenced in the County Court to a term of four years’ imprisonment, wholly suspended, on charges of trafficking in heroin and possession of a drug of dependence.
As already noted, senior counsel for the applicant correctly pointed out on the plea that the applicant was not convicted of, and was therefore not to be sentenced for, participation in ‘the actual trafficking’ undertaken by Markovski. As we have said, the applicant was convicted of possession of a quantity of methylamphetamine for sale. But this distinction does not materially affect her culpability, in our view. In a case such as this, the holding of a supply of saleable drugs is as important a part of trafficking as is the act of selling. That being so, it matters little, in our view, that the applicant was proved to have been in possession only at one particular time.
Senior counsel for the Crown conceded on the appeal that a partially-suspended sentence would be within range in this case. He argued, however, that the applicant should be required to serve a longer period of actual custody than the two months which she had served before she was granted bail pending the appeal.
Ordinarily, we would agree. But this is no ordinary case. There are certain special considerations which must be brought to account. The applicant has been on bail since 12 September 2008. For reasons beyond her control, her conviction appeal became an important test case in relation to s 5 of the DPCS Act and the application of the Charter to that provision. As a result the applicant has been at large, and has been living with the uncertainty of her future, for considerably longer than would have been the case had her appeal been dealt with in the conventional way.[254]
[254]Cf R v Wei Tang [2009] VSCA 182, [70].
In the circumstances, and having regard to considerations of parity and to the significant mitigating factors on which the applicant can rely, we would sentence her to 18 months’ imprisonment. We would uphold the submission made on her behalf that so much of that sentence as has not already been served should be suspended for a period of 16 months.
APPENDIX 1
CIRCUMSTANCES OF THE OFFENDING
(TAKEN FROM REASONS FOR SENTENCE)
On 14 January 2006 you owned and resided in apartment 1409 at Regency Towers, 265 Exhibition Street, Melbourne. You resided in this apartment with Velimir Markovski. You had been residing together there since approximately 2002 and you had been involved in a relationship with him since approximately 1990.
As a result of a police operation targeting drug trafficking by two Werribee men, Anthony Sheen and David Moir, Markovski also became a target of that operation. Pursuant to that operation Markovski was the subject of physical surveillance and telephone interception. In the period from 9 December 2005 to 14 January 2006, Markovski was involved in trafficking methylamphetamine and cocaine. At the time he was residing with you at apartment 1409. Markovski also owned a unit on the 25th floor in the same block of apartments, as well as one in Collins Street.
On 12 January 2006 Sheen and Moir attended at your apartment apparently to purchase drugs from Markovski. On 14 January, as a result of telephone interceptions, the police became aware that Sheen and Moir were again to attend at the Regency Towers. Surveillance footage shows Sheen attending at the Towers and being escorted onto the 14th floor by Markovski. Subsequently, Sheen and Moir drove away from the Towers and were intercepted some minutes later in Carlton. They were found to be in possession of 28 grams of methylamphetamine packaged in two packages of 14 grams each.
Subsequently, at 3.15 pm, police executed a search warrant at apartment 1409. You were present when the police knocked on the door and said that they were maintenance personnel. At that stage you were in pyjamas, having been in bed, and asked them to come back a short time later. You let them into the premises a couple of minutes later and at that point they advised you that they were police officers and they conducted a search.
In the course of the search the police found in the freezer compartment of the bar-sized fridge a plastic bag containing 64.6 grams of 50% pure methylamphetamine. In the crisper section of the fridge they found a plastic Tupperware container containing 20 smaller plastic bags containing various amounts of methylamphetamine from .9 grams to 98.6 grams, with purities ranging from 16% to 50%, with a total weight of 394.2 grams. In the kitchen cupboard above the sink was a Moccona coffee jar containing 325.8 grams of a substance that included an indeterminate amount of methylamphetamine. In addition, within the unit they located two sets of electronic scales, a further bag of an undefined crystalline material, a smaller container of a white crystalline material described as Markovski in evidence as ‘artificial sugar’ which was to add to the methylamphetamine, and another coffee jar containing a white powder. Also present in a drawer in the lounge room were a number of smaller plastic bags similar to those found in the crisper. Also located was a spatula. In a rubbish bin were remnants of plastic bags that matched those in the possession of Sheen and Moir. In a walk-in robe off the master bedroom, in a shoe box on a shelf, they located the sum of $165,900 in cash.
The police subjected the items seized to forensic testing and the only DNA material recovered on the items was that of Markovski on the handles of a plastic bag that contained the plaster container in the crisper. None of your DNA material or fingerprints were found on any of the other items seized.
You were arrested and gave what was effectively a ‘no-comment’ record of interview.
The Crown case, as put to the jury, was that this apartment was operating as a minor amphetamine factory where Markovski was conducting his business of diluting amphetamine and selling it. The Crown put to the jury that you provided the facility from which the operation took place.
You have evidence wherein you denied any knowledge of the drugs or of any drug trafficking engaged in by Markovski. You denied that you were aware of the drugs in the refrigerator, the scales and other containers containing drugs and drug cutting materials, and the other materials, such as plastic bags and the spatula, that was seized by the police. You further denied any knowledge of the cash found in the walk-in robe. Your evidence was that you hardly used the refrigerator and that the items were found in cupboards that were not easy to access. You were unaware that Markovski had placed those items within the apartment. You put your character in issue and the evidence was that you are a legal practitioner and a qualified patent attorney. You further called character evidence in support of your case.
Markovski, who is serving a sentence of six years imprisonment with a minimum term of four years following his pleas of guilty to trafficking methylamphetamine and cocaine, gave evidence wherein he admitted that he was involved in drug trafficking and had a 1996 prior conviction for trafficking in heroin. He denied that you had any involvement in the drug trafficking that he had been undertaking or that you were aware of the cash in the wardrobe, which he claimed to be his own.
The Crown relied on deemed possession of the drugs pursuant to s 5 of the Drugs Poisons & Controlled Substances Act 1994, which threw an onus on you to satisfy the jury on the balance of probabilities that you were not aware of the prohibited drugs. The jury must be taken to have rejected your evidence. The Crown case was put on the basis that you had possession of the drugs and, that the trafficking was constituted by being in possession of a prohibited drug for sale. The Crown further relied on the deeming provisions of s 73 of the Act, which provides that if you are in possession of more than six grams of the prohibited drug of methylamphetamine then that is prima facie evidence of trafficking that drug. The jury must be taken to have been satisfied beyond reasonable doubt of your intention to possess the relevant amount of the prohibited drug for the purpose of sale.
In the course of your evidence you were closely pressed as to your knowledge of the prior drug convictions of Markovski, and you dissembled in that evidence before admitting you were aware of the prior convictions.
I must approach this matter on the basis that the jury disbelieved you, and also disbelieved the exculpatory evidence of Markovski.
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