S C v The Queen

[2010] VSCA 271

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0308

S C	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	MAXWELL P, BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 September 2010
DATE OF JUDGMENT:	27 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 271
JUDGMENT APPEALED FROM:	R v [S C] (Unreported, County Court of Victoria, 7 September 2010, Judge Sexton (date of ruling; date of refusal to certify))

---

CRIMINAL LAW – Appeal – Interlocutory appeal – Application for review of refusal to certify – Whether trial should be adjourned pending High Court appeal in R v Momcilovic [2010] VSCA 50 – Court of Appeal reaffirmed long-established interpretation of Drugs, Poisons and Controlled Substances Act1981 (Vic) s 5 – Basis on which County Court should operate where Court of Appeal decision appealed – Discretion of trial judge – No error shown – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R F Edney	Robert Stary Lawyers
For the Respondent	Mr T S Lynch with Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P

BUCHANAN JA
NEAVE JA:

1. The applicant is facing trial on one count of trafficking in a drug of dependence in not less than a commercial quantity; one count of cultivating a narcotic plant in not less than a commercial quantity; and one count of possessing a drug of dependence.  On 7 September 2010, her Honour Judge Sexton rejected his application to adjourn the trial pending the hearing and determination by the High Court of the appeal in R v Momcilovic.[1]  Special leave to appeal was granted on 3 September 2010.

   [1] [2010] VSCA 50 (‘Momcilovic’).

1. Her Honour refused to grant a certificate under s 295(3)(b) of the Criminal Procedure Act2009 (Vic) (‘CPA’) in respect of her interlocutory decision. The applicant has applied under s 296(1) of the CPA for a review of the refusal to certify.

1. In our view, her Honour was correct in refusing to certify, and the application for a review of that decision should be refused.  Our reasons are as follows.

1. Ms Momcilovic’s appeal was dismissed by the Court of Appeal on 17 March 2010.[2] The relevant part of the Court’s decision concerned the interpretation of s 5 of the Drugs, Poisons and Controlled Substances Act1981 (Vic) (‘Act’), which gives an extended meaning of the word ‘possession’ for the purposes of the Act, as follows:

5        Meaning of possession

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.[3]

[2] Ibid.

[3]            Emphasis added.

1. In its decision, the Court of Appeal reaffirmed the long-established view that s 5 imposes a legal burden on the accused to establish to the Court’s satisfaction that he or she was not in possession of the relevant substance:[4]

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,[5] and it was reaffirmed by this Court in Gluyas[6] and again in Tragear.[7]

[4]            R v Momcilovic [2010] VSCA 50, [19].

[5] [1986] VR 643 (Crockett, McGarvie and Southwell JJ).

[6] (2002) 128 A Crim R 7, 9 (Winneke P, Brooking and Charles JJA).

[7] (2003) 9 VR 107, 117.

1. The Court also rejected an alternative argument that s 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) authorised (and hence required) the Court to reinterpret s 5 as imposing on an accused an evidentiary onus only.[8] 

   [8] Ibid [69], [113].

1. The prosecution relies on s 5 in the present case. The sole basis of the application for adjournment, and of this application for review, was that the grant of special leave in Momcilovic[9] raised the possibility that the settled interpretation of s 5 of the Act might be departed from. Hence, it was said, the applicant's trial should be adjourned to await the hearing and determination of the appeal. As counsel properly conceded, if this argument were correct it would necessarily apply to every drug prosecution where reliance is placed on s 5.

   [9] [2010] VSCA 50.

1. In her short reasons for refusing the adjournment application, Judge Sexton indicated that she had spoken to the Chief Judge, who had advised that, in the period between the hearing of argument in the Court of Appeal (in July 2009) and the handing down of the decision in the appeal (in March this year), prosecutions in which s 5 was relied on were adjourned. Her Honour went on to say that the Chief Judge described the usual course as being:

[t]hat if three judges of the Court of Appeal have pronounced on the interpretation of a law, that is the basis upon which we operate.

1. Her Honour went on:

In this case, there has been an interpretation placed on s 5, which in fact was the basis on which we have been operating for some two decades, and what the High Court might do on an appeal is really not something that we can operate on. It may be that they are dealing only with the Charter of Human Rights issue. It may be that they are dealing with the s 5 issue, but we have three judges of the Court of Appeal that have pronounced on the law in this state and so I am therefore not inclined to grant the adjournment.

1. The power to grant an adjournment being discretionary, this Court would not intervene unless appellable error was demonstrated. With respect, we think that, far from disclosing error, her Honour’s reasoning was entirely correct. The law in Victoria in relation to s 5 remains unchanged. The criminal courts of Victoria will continue to apply the established interpretation of s 5 unless and until the High Court declares that, whether by application of the Charter or otherwise, that interpretation is wrong.

1. The possibility that the High Court might reach a different conclusion on the interpretation of s 5 of the Act, whether by application of the Charter or otherwise, is simply that: a possibility. The position might have been different had there been some indication from one or other member of the High Court bench on the application for special leave that the established view of s 5 appeared to be demonstrably wrong. There was no such indication. Leaving that exceptional circumstance aside, no guidance can be obtained from the discussion on special leave as to the likely outcome on the appeal.

1. For these reasons, in our view, her Honour was right to conclude, in the terms of s 295(3)(b) of the CPA, that her interlocutory decision was not ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.

1. It follows that the application must be refused.