As you were: no adjournments pending Momcilovic’s appeal?

I mentioned a few weeks back that the High Court granted leave to appeal in Momcilovic’s case.

I know a few cases have been adjourned pending the High Court’s judgment, but there might not be too many more.

In S C v The Queen [2010] VSCA 271 the accused was charged with trafficking a drug of dependence. The prosecution relied on s 5 of the Drugs, Poisons and Controlled Substances Act — one (but not the only) issue in Momcilovic’s case.

The accused applied for his trial to be adjourned pending the High Court appeal. (The general power to adjourn is s 331 of the Criminal Procedure Act 2009.) The trial judge refused the application. The accused appealed to the Court of Appeal under s 295 of the Criminal Procedure Act.

The Court of Appeal noted that the decision to grant an adjournment is a discretionary one, and as with all discretionary decisions, an appellate court won’t intervene in that decision unless plainly wrong. Cases like House v The King (1936) 55 CLR 499 are probably relevant, but there are a number of discrete authorities on the point regarding adjournments. The general gist of them is that the Court must balance the interests and rights of the accused with the interests of justice — which might not be the same: Brimbank Automotive Pty Ltd v Murphy [2009] VSC 26 at [20]; Champion v Richardson (2003) 40 MVR 529 at 539; R v Cox [1960] VR 665 at 667.

Though it seemed not to get a mention in this case, presumably Charter s 25(2)(c) also tends against the adjournment, providing that an accused must be tried without unreasonable delay.

The Court of Appeal considered there was no error in the trial judge’s decision, and so refused the appeal.

Because it was an appeal of a discretionary decision, this decision doesn’t mean that adjournment applications must be refused in all cases.

But…the Court did tell us what its thoughts are about adjournments generally, at [10] – [11]:

[10] The power to grant an adjournment being discretionary, this Court would not intervene unless appellable error was demonstrated. With respect, we think that, far from disclosing error, her Honour’s reasoning was entirely correct. The law in Victoria in relation to s 5 remains unchanged. The criminal courts of Victoria will continue to apply the established interpretation of s 5 unless and until the High Court declares that, whether by application of the Charter or otherwise, that interpretation is wrong.

[11] The possibility that the High Court might reach a different conclusion on the interpretation of s 5 of the Act, whether by application of the Charter or otherwise, is simply that: a possibility. The position might have been different had there been some indication from one or other member of the High Court bench on the application for special leave that the established view of s 5 appeared to be demonstrably wrong. There was no such indication. Leaving that exceptional circumstance aside, no guidance can be obtained from the discussion on special leave as to the likely outcome on the appeal.

I think it’s a pretty sure bet many prosecutors will make use of this to oppose adjournment applications pending Momcilovic’s case.

However, I daresay those accused of offences relying on s 5 will still apply for adjournments, and there are several reason why they might.

First, there’s the practical concern of conviction and penalty and the inability to unscramble the omelette should the High Court decide Momcilovic was wrong.

Second, there’s the argument that following an adjournment — subject to such restrictions as necessary on bail or in custody — if Momcilovic was right, there’s no real impediment to the Court appropriately dispensing justice, albeit later than it otherwise would have.

Third, and perhaps most importantly, there are the criteria governing High Court appeals, found in s 35A of the Judiciary Act 1903:

  • if a question of law:
    • is of public importance, because of its general application or otherwise; or
    • that the High Court must resolve differences of opinion between different courts, or within the one court, about the state of the law; and
  • if the interests of the administration of justice generally or particularly require the High Court’s consideration.

Reading the leave application transcripts, it seems all those boxes are ticked. Crennan J even mentions there might be Constitutional problems with the declaration of inconsistency and Kable arguments, even though none of the parties have raised them. (Yet.)

It seems arguable at least that if the High Court considers the issues are important enough for its attention, and that — on the Charter point at least — there are different opinions to be reconciled, there must be some doubt about the current state of the law justifying a wait-and-see approach subject to adequate safeguards.

Mind you, it’ll be a courageous judicial officer who doesn’t pay close heed to what the Court of Appeal said! Expect to hear some more argument on this in the months to come!

3 thoughts on “As you were: no adjournments pending Momcilovic’s appeal?

  1. Jeremy Gans

    Interestingly, the HCA itself opted to delay the Momcilovic hearing until February, after that was requested by the Attorney-General, citing the need to avoid a caretaker period following the Victorian election. A pretty slim ground for a delay, it seems to me; is it really worth the cost in having quite a few more omelettes to unscramble?Note also, as I keep pointing out, that Momcilovic and SC (and anyone else who risks having s5 used against them) has a fine old constitutional argument to raise relying on s109 and the HCA's recent decision in Dickson. If SC wants a delay, then that's what he/she should be raising. And I can't imagine why Momcilovic herself isn't relying on this point in the HCA.

  2. Jeremy, it is an interesting point, and I confess to needing to still get my head around it: Dickson is deceptively short.But as I understand it, the point arises when there's a topic or subject matter covered by federal and state legislation?But for 'simple' trafficking with no federal aspect to it, is there any relevant federal offence that could then bring in to play s 109 of the Constitution? Am I reading that write: that's what's required?

  3. There have been federal drug offences with no 'federal aspect' in Part 9.1 of the Criminal Code since 2005. See ss 302.2-302.4 for trafficking offences. There are also cultivation and possession offences. There is no requirement that the drugs being imported or exported (though Part 9.1 also has some specific offences for 'border-controlled' goods, just in case there are constitutional problems I guess.) The constitutional basis of Part 9.1 is external affairs.The application of Dickson then depends on whether the state offences detract from the Cth ones. I'd say that s5 of the DPSCA (in combination with s71, etc.) detracts from s. 302.4 (possibly read in combination with s. 13.1(1), which imposes the usual burden and standard of proof on the prosecution.) The wildcard is the concurrency provision in s. 300.4 of the CC (see also 313.1 and 313.2). But the Dickson court's reasoning was independent of Parliamentary intent and, in obiter, criticsed such savings provisions. The other wildcard is whether the HCA will change its mind once it realises the ramifications of its own decision. But s5 of the DPSCA provides a pretty strong case for the Dickson approach (certainly a lot stronger than the facts of Dickson!)

Leave a Reply