High Court of Australia

Momcilovic v The Queen [2011] HCA 34

245 CLR 1

8 Sep 2011

Case Number: M134/2010


French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ


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).


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