Case M134/2010

Momcilovic v. The Queen and Ors

Case No.

M134/2010

Case Information

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

Documents

03/09/2010 Hearing (SLA, Melbourne)

24/09/2010 Notice of appeal

28/09/2010 Notice of constitutional matter

29/11/2010 Notice of constitutional matter

21/01/2011 Written submissions (Appellant)

21/01/2011 Chronology

27/01/2011 Written submissions (First Respondent)

27/01/2011 Written submissions (Second Respondent)

27/01/2011 Written submissions (Third Respondent)

31/01/2011 Written submissions (Attorney-General of the Commonwealth)

31/01/2011 Written submissions (Attorney-General for the State of Western Australia)

31/01/2011 Written submissions (Attorney-General for the State of New South Wales)

31/01/2011 Written submissions (Attorney-General for the State of South Australia)

31/01/2011 Written submissions (Attorney-General Australian Capital Territory)

31/01/2011 Written submissions (Seeking leave to appear as amicus curiae to Human Rights Law Resource Centre Ltd)

03/02/2011 Reply

08/02/2011 Hearing (Full Court, Canberra)

09/02/2011 Hearing (Full Court, Canberra)

10/02/2011 Hearing (Full Court, Canberra)

17/02/2011 Additional written submissions (Appellant)

23/02/2011 Supplementary written submissions (Third Respondent)

01/03/2011 Supplementary written submissions (First Respondent)

03/03/2011 Supplementary written submissions (Second Respondent)

03/03/2011 Supplementary written submissions (Attorney-General of the Commonwealth)

18/03/2011 Submissions in answer to the Court's questions (Appellant)

25/03/2011 Submissions in answer to the Court's questions (Attorney-General for the State of Western Australia)

28/03/2011 Submissions in answer to the Court's questions (First Respondent)

28/03/2011 Submissions in answer to the Court's questions (Second Respondent)

28/03/2011 Submissions in answer to the Court's questions (Third Respondent)

28/03/2011 Joint submissions in answer to the Court's questions 1 to 3 (Second Respondent and the Attorneys-General for the Commonwealth, New South Wales, Western Australia, South Australia, Tasmania and the Australian Capital Territory)

28/03/2011 Submissions in answer to the Court's questions (Attorney-General of the Commonwealth)

28/03/2011 Submissions in answer to the Court's questions (Attorney-General for the State of South Australia)

28/03/2011 Submissions in answer to the Court's questions (Human Rights Law Resource Centre Ltd)

07/06/2011 Hearing (Full Court, Canberra)

08/09/2011 Judgment  (Judgment summary)