Momcilovic v. The Queen and Ors

Lower Court Judgment

17/03/2010 Supreme Court of Victoria (Court of Appeal)(Maxwell P, Ashley & Neave JJA)

[2010] VSCA 50

Catchwords

 Criminal law — Particular offences — Drug offences — Possession — — Where person deemed to be in possession of drugs “upon any land or premises” occupied by person, unless person satisfies court to the contrary: Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Act”) s 5 — Whether s 5 of the Act creates legal onus on accused to disprove possession on balance of probabilities or evidential onus to show that he or she was not in possession.

Criminal law — Appeal — Grounds of appeal — Conduct of trial judge — Misdirection or non-direction — Where drugs found in applicant’s home — Where applicant and her partner gave evidence that drugs were her partner’s and that applicant had no knowledge of them — Whether trial judge should have directed jury that prosecution must prove applicant’s knowledge of drugs in order to prove possession.

Human rights — Presumption of innocence — Statutory reversal of burden of proof of possession of drugs — Where Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) s 32 provides “[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” — Whether “possible” to interpret s 5 of the Act compatibly with right to presumption of innocence — Charter ss 7(2), 25(1), 32(1).

Statutes — Acts of Parliament — Interpretation — Function of courts — Whether s 32 of Charter creates “special rule of interpretation” allowing court to depart from legislative intention of enacting Parliament to ensure compatibility with human rights — Ghaidan v Godin-Mendoza [2004] UKHL 30.

Constitutional law — Operation and effect of Commonwealth Constitution — Chapter III — Federal jurisdiction of State courts — Local limitations of State court — Whether s 32 of the Charter confers a legislative function on State courts — Whether institutional integrity of State courts impaired — Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

High Court and Federal Court — High Court of Australia — Appellate jurisdiction — Where relief sought includes order setting aside declaration of inconsistent interpretation under s 36 of Charter made by intermediate appellate court — Whether High Court has jurisdiction under s 73 of Constitution to grant relief sought.

Short Particulars