Momcilovic v The Queen [2011] HCA 34 (8 September 2011)

Constitutional law (Cth) – Inconsistency between Commonwealth and State laws – Appellant convicted of trafficking in methylamphetamine contrary to s 71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“Drugs Act”) – Trafficking in methylamphetamine an indictable offence under s 302.4 of Criminal Code (Cth) – Commonwealth offence prescribed lower maximum penalty than State offence and different sentencing regime – Whether State law inconsistent with Commonwealth law and invalid to extent of inconsistency.

Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Functions conferred on State courts by State law – Compatibility with role of State courts under Ch III – Section 32(1) of Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) provided “[s]o 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” – Section 36(2) of Charter empowered Supreme Court of Victoria to make declaration that statutory provision cannot be interpreted consistently with a human right – Declaration had no effect upon validity of provision or legal rights of any person – Nature of task required by s 32(1) of Charter – Whether s 32(1) reflection of principle of legality – Whether s 32(1) invalid for incompatibility with institutional integrity of Supreme Court – Whether s 36 confers judicial function or function incidental to exercise of judicial power – Whether s 36 invalid for incompatibility with institutional integrity of Supreme Court.

Constitutional law (Cth) – High Court – Appellate jurisdiction – Whether declaration made under s 36 of Charter subject to appellate jurisdiction of High Court conferred by s 73 of Constitution.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Appellant resident of Queensland at time presentment filed for offence under Drugs Act – Whether County Court and Court of Appeal exercising federal jurisdiction – Operation of s 79 of Judiciary Act 1903 (Cth) in respect of Charter and Drugs Act.

Criminal law – Particular offences – Drug offences – Trafficking – Possession for sale or supply – Section 5 of Drugs Act provided that any substance shall be deemed to be in possession of a person so long as it is upon any land or premises occupied by him, unless person satisfies court to the contrary – Section 70(1) of Drugs Act defined “traffick” to include “have in possession for sale” – Section 73(2) of Drugs Act provided that unauthorised possession of traffickable quantity of drug of dependence by a person is prima facie evidence of trafficking

by that person – Whether s 5 applicable to offence under s 71AC on basis of “possession for sale” – Whether s 5 applicable to s 73(2) – Whether onus on prosecution to prove appellant had knowledge of presence of drugs – Whether onus on appellant to prove not in possession of drugs.

Statutes – Validity – Severance – Section 33 of Charter provided for referral to Supreme Court of questions of law relating to application of Charter or interpretation of statutory provisions in accordance with Charter – Section 37 of Charter required Minister administering statutory provision in respect of which declaration made under s 36(2) to prepare written response and cause copies of declaration and response to be laid before Parliament and published in Government Gazette – Whether, if s 36 of Charter invalid, ss 33 and 37, and balance of Charter, severable from s 36.

Statutes – Interpretation – Section 7(2) of Charter provided that a human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society – Whether s 7(2) relevant to interpretive process under s 32(1) – Whether s 5 of Drugs Act to be construed to impose evidential rather than legal onus on appellant.

Procedure – Costs – Criminal appeal – Departing from general rule for costs where appeal raised significant issues of constitutional law – Whether appellant entitled to special costs order.

Words and phrases – “declaration”, “diversity jurisdiction”, “evidential onus”, “incompatibility”, “institutional integrity”, “interpret”, “legal onus”, “legislative intention”, “matter”, “possession”, “possession for sale”, “resident of a State”, “right to be presumed innocent”.

Constitution, Ch III, ss 73, 75(iv), 77(iii), 109.
Commonwealth of Australia Constitution Act 1900 (Imp), s 5.
Crimes Act 1914 (Cth), s 4C(2).
Criminal Code (Cth), ss 13.1, 13.2, 300.4, 302.4, 302.5.
Judiciary Act 1903 (Cth), ss 39(2), 79.
Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 25(1), 32, 33, 36, 37.
Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 70(1), 71AC, 73(2).
Interpretation of Legislation Act 1984 (Vic), s 6(1).

511. Section 5 of the Drugs Act denies the operation of the common law rule that the prosecution prove the guilt of an accused person by proof, beyond reasonable doubt, of both negative and positive elements of an offence[721]. The rule reflects the common law concept of the presumption of a person’s innocence[722].
512. The principle of legality at common law would require that a statutory provision affecting the presumption of innocence be construed, so far as the language of the provision allows, to minimise or avoid the displacement of the presumption. But, for the reasons which follow, its application to s 5 cannot yield a construction other than that required by the clear language of that section, which places the legal burden of proof on the accused.

[721] Referred to as the “golden thread”: see Woolmington v The Director of Public Prosecutions [1935] UKHL 1; [1935] AC 462 at 481 per Viscount Sankey LC; and see Phipson on Evidence, 17th ed (2010) at 154 [6-09]. The rule is now embodied in s 141 of the Evidence Act 2008 (Vic) albeit, by s 8 of that Act, it does not affect the operation of any other Act.