High Court orders retrial in Momcilovic v The Queen

The High Court has today quashed the conviction of Vera Momcilovic in Momcilovic v The Queen [2011] HCA 34 and ordered a retrial.

Ms Momcilovic had her appealed dismissed by the Victorian Court of Appeal, who had held that s5 of the Drugs, Poisons and Controlled Substances Act 1981 could not be interpreted in a manner more compatible with human rights. Section 5 transferred the onus of proof onto Ms Momcilovic to prove that the drugs found on her premises were not hers.

The High Court’s reasoning in allowing the appeal however, was that the offence of traficking (s71AC), which Ms Momcilovic was convicted under did not engage s5 of the Act (the section which reversed the onus of proof onto the accused), therefore, the onus of proof was not on Ms Momcilovic to prove that the drugs were not hers, with Gummow J stating that:

The appellant submitted in this Court that the words in par (c) of the definition of "traffick"...provide a composite expression from which the words "have in possession" are not to be severed; on the other hand s 5 of the Drugs Act speaks only to "possession" per se and so is not engaged by s 71AC...these submissions should be accepted. 

The trial in the Victorian Court of Appeal was the first instance where a legislative provision was declared to be inconsistent with Victoria’s Charter of Human Rights and Responsibilities Act 2006. 

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