edit: Jeremy Gans has come out of blogging-retirement a second time to blog on this case. His piece is a cracker of a read, and aside from being a far more detailed analysis, also drives home the point that when all is said and done the Charter really is just another piece of legislation, which relies on the government to fix laws that are inconsistent with the Charter.

(I’ve always thought that the way to really make legislation effective and beyond the reach of political imperatives is give it obligatory provisions and double-entrench them.)

If you haven’t read Jeremy’s analysis, I urge you to have a look.

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Last year I blogged about Vera Momcilovic’s application to the Court of Appeal, courtesy of information from the Criminal Bar Association.

The Court of Appeal today delivered its judgment, R v Momcilovic [2010] VSCA 50. The Human Rights Law Resource Centre already has its analysis of the case online.

The headline: s 5 of the Drugs, Poisons and Controlled Substances Act 1981 (DPSC Act) does impose a legal burden on an accused person to disprove possession on the balance of probabilities; is incompatible with the presumption of innocence; but is still valid; and Vera Momcilovic remains guilty of trafficking a drug of dependence.

It’s a joint judgment (hooray), and very well written and easy to read. Although it’s 75-pages, when it’s reported — as inevitably it will be — without the broad margins and double-spaced lines of a media-neutral case, it’ll probably be no more than 20 pages in the Victorian Reports.

A quick refresher on the basic facts…the police searched Vera Momcilovic’s apartment and found 394 grams of methylamphetamine in a freezer. She gave sworn evidence she didn’t know about the drugs. Her boyfriend Velimir Markovski (convicted in a separate trial of trafficking the drugs, discussed in his sentencing appeal here) gave evidence at her trial that Ms Momcilovic wasn’t aware of the drugs or his trafficking. Momcilovic was convicted of trafficking a drug of dependence.

She applied to the Court of Appeal with three reasons why it should let her appeal her conviction and sentence.

The first two were unsuccessful. The third one, on sentence, succeeded.

1. Conviction appeal — the reverse onus

Momcilovic’s first argument was to allow an appeal against her conviction for possession of drugs found in the freezer.

Section 5 and the burden on an accused person

The first limb of this argument was that s 5 of the DPSC Act imposed an evidentiary rather than legal burden on an accused person to disprove possession.

An evidentiary burden means simply there is evidence — information admissible under the rules of evidence and placed before the jury — the accused can refer to that raises an issue, such as, “I didn’t know the drugs were there.” Once that happens, the prosecution must disprove it beyond a reasonable doubt to prove its case.

A legal burden means the accused must prove the point on the balance of probabilities.

The Court rejected the argument.

[19] In our view, these submissions must be rejected. The question of construction is a straightforward one. The phrase ‘unless the person satisfies the Court to the contrary’ conveys unambiguously the legislative intention that the accused should carry the legal burden of establishing, to the Court’s satisfaction, that he/she was not in possession of the relevant substance. That was the view of the Full Court in 1986 in Clarke, and it was reaffirmed by this Court in Gluyas and again in Tragear. (Citations omitted)

Charter effect

The other limb to this argument was that the Charter of Human Rights and Responsibilities Act 2006 (the Charter) required courts to now interpret DPCS Act s 5 differently.

At [25], the Court laid out the Charter-argument:

1. Under s 25(1) of the Charter, ‘[a] person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law.’

2. The imposition on an accused of a legal burden of disproof, on the balance of probabilities, of ‘an issue as fundamental as possession’ is not compatible with s 25(1).

3. Nor can the imposition of the legal burden be regarded as a reasonable or proportionate limit upon the presumption of innocence, within the meaning of s 7(2) of the Charter.

4. Section 32(1) of the Charter provides: ‘So 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.’

5. It is possible to interpret s 5, consistently with the purpose of the offence provisions, as placing only an evidentiary burden on the accused, and that is how s 5 must therefore be interpreted.

The Court then reviewed the parties’ arguments (there were 5 all up, with the Attorney-General, Victorian Equal Opportunity and Human Rights Commission, and Human Rights Law Resource Centre all intervening).

A major point was the role of Charter s 32(1), which requires courts to interpret statutory provisions compatibly with human rights. Does it come into play after a section is interpreted if that interpretation is inconsistent with human rights? Or, does it operate before interpreting a provision, so that its meaning must be figured out compatibly with human rights, from the word go? This is important, because it might mean that human-rights-interpretation is a different type or method of statutory interpretation from those accepted at common law.

And it might also affect the reasonable-limits provision in Charter s 7(2), and whether that comes into play before or after interpreting a statutory provision.

At [35] the Court said the right way to do Charter interpretation is:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The Court then said:

On the view we take of s 32(1), it is not ‘possible’ to interpret s 5 of the DPCS Act, consistently with its purpose, otherwise than as it has been traditionally interpreted — that is, as imposing a reverse legal onus of proof.

The Court then reviewed English, Hong Kong and New Zealand authorities on human rights interpretation. In a brief, but tellingly candid observation, at [61] the Court pointed out that one reason for the different conclusions in other jurisdictions is that a finding of incompatibility under some Charter equivalents elsewhere is that the statutory provision is invalid (or ‘struck down‘ in legalese). Here, because of s 36(5)(a), it’s doesn’t make a jot of difference — at least in a practical sense for the validity of the legislation.

At [74] the Court considered that s 32(1) differed from the similar UK provision because it didn’t require interpretation contrary to Parliamentary intention; rather, it provided for interpretation compatible with human rights so far as is possible. That means, if the clear purpose and interpretation of a provision isn’t compatible with human rights, courts can’t interpret them any differently.

It went on to note at [92] – [96] that courts can declare legislative provisions inconsistent with human rights — consistent with the ‘dialogue-model’ of our Charter — and it’s then up to Parliament what it wants to do to fix that.

Does s 5 limit the presumption of innocence?

The Court then turned to consider the Charter s 7(2) point: if the provision breaches a human right, and if so, is it justified?

At [135] it said, yup, s 5 does infringe the presumption of innocence. It means that proof of occupation establishes a prima facie case of trafficking against an accused person.

At [152] the Court said s 5 is unjustifiable in its operation for possession offences contrary to DPCS Act s 73(1). (You’ll find a typo in the judgment at that paragraph, where the Court refers to s 72 instead of 73.)

And at [153] it said the same for s 5 relating to trafficking offences.

The result? A declaration of inconsistency under Charter s 36. I’m pretty sure this is the first one in Victoria. The Court issued a draft notice of inconsistency, and granted the Attorney-General and Commission the opportunity to make further submissions — which may well result in Momcilovic (No 2) at the Court of Appeal.

2. Conviction appeal — other grounds

The other grounds didn’t deal with Charter grounds, but directions by the trial judge. In short, they were all rejected on the basis that they didn’t accord with the way the trial was run.

3. Sentence appeal

This was allowed. At [189] the Court said the sentencing judge considered Momcilovic possessed a quantity of drugs nearly 80% of a commercial quantity of methylamphetamine in a mixture (which was 1250 grams at sentencing), rather than 31%.

That error meant the discretion to re-sentence existed, and the Court imposed a new sentence of 18 months’ jail, with the balance owing suspended for 16 months.

The end result

Momcilovic provides some answers, but raises a few more.

The current state of play is: the DPSC Act s 5 imposes a legal burden on an accused person, and can’t be interpreted compatibly with human rights. The Court of Appeal intends to declare it’s inconsistent with the presumption of innocence in Charter s 25(1). There might be further legal argument about the declaration of inconsistency, and if made, Parliament must decide what its response will be under Charter s 37. Most importantly for future prosecutions relying on s 5, and people accused of trafficking or possessing drugs of dependence, s 5 remains valid because of Charter s 36(5)(a).

What happens next, and how Parliament responds, will be the first opportunity to see what and how much emphasis the Parliament will place on human rights affected by human-rights-incompatible legislative provisions.

And of course, there’s always the possibility of a High Court appeal.