Momcilovic v The Queen

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’.