Human rights might alter burdens for deemed possession

The Criminal Bar Association sent an email about two weeks ago to its members from barrister Michael Croucher. He discussed an application for leave to appeal to the Court of Appeal by Vera Momcilovic against her conviction and sentence. The application is listed for 22 and 23 July.

The outcome could have a significant effect in all criminal jurisdictions in Victoria, not just the summary jurisdiction.

It concerns the interpretation of the Drugs, Poisons and Controlled Substances Act 1981 s 5 (deemed possession of drugs) and the Charter of Human Rights and Responsibilities Act 2006 ss 25 (rights in criminal proceedings) and 32 (interpretation).

Vera Momcilovic was convicted by a County Court jury of trafficking methylamphetamine, found at her apartment. She gave sworn evidence she didn’t know about the drugs. Her boyfriend Velimir Markovski (convicted in a separate trial of trafficking the drugs) gave evidence at her trial that Ms Momcilovic wasn’t aware of the drugs or his trafficking.

The Crown case alleged possession for sale, relying on the Drugs, Poisons and Controlled Substances Act 1981 s 5 (which deems a person possesses drugs found on their land or premises unless they satisfy the court otherwise) and s 73(2).

Those provisions provide:

5. Meaning of possession

Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

73. Possession of a drug of dependence

(2) Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.

Ms Momcilovic was sentenced to 27 months’ jail, with a non-parole period of 18 months.

Her application for leave to appeal is against her conviction and sentence.

One issue in the application is if the reverse-onus provision in s 5 of the DPCS Act places only an evidentiary onus on the accused rather than a legal onus (on the balance of probabilities), because of the presumption of innocence in s 25(1) of the Charter and the requirement to interpret legislation consistently with human rights in s 32 of the Charter.

Since the Court of Criminal Appeal decided R v Clarke & Johnson [1986] VR 643; (1986) 21 A Crim R 135, it seemed settled that s 5 imposed a legal burden on an accused person:

There is a distinct difference in operation between s 5 and s 73(2). The former section operates so that facts establishing less than the possession of a drug by an accused are deemed to establish possession unless the accused satisfies the jury on the balance of probabilities that he was not in possession of it. The latter sub-section operates so that if the accused has in his possession a traffickable quantity of drugs that is prima facie evidence of trafficking by the accused: R v Clarke & Johnson [1986] VR 643 at 659; (1986) 21 A Crim R 135 at 152.

The upshot of all this is that if the prosecution can prove beyond reasonable doubt an accused occupies or controls premises where drugs are found, the accused is deemed to possess those drugs unless they prove on the balance of probabilities they weren’t in possession. Typically, that’s attempted by trying to prove they didn’t know the drugs were there. (But negating any element of s 5 will achieve that result.)

If the quantity of drug exceeds the relevant traffickable quantity, s 73(2) can be used with s 5 to prove the accused intended to traffick the drugs, as defined in s 70(1).

The Attorney-General for Victoria and the Victorian Equal Opportunity and Human Rights Commission are intervening on the Charter point, under ss 34 and 40 of the Charter. The Human Rights Resource Law Centre is also seeking leave to appear as amicus curiae (Latin for friend of the court) on the Charter issue.

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