Monday, 19 September 2011

Momcilovic: the Court, the Trafficker, the Lawyers and their Charter

I settled on this lengthy title, partly in a nod to The Cook, The Thief, His Wife and Her Lover, and partly to reflect to broad coverage of Momcilovic v The Queen [2011] HCA 34.

To briefly remind you: Momcilovic dealt with the presumption of innocence in s 25(1) of the Charter of Human Rights and Responsibilities Act 2006 and if that required Victorian courts to read s 5 of the Drugs, Poisons and Controlled Substances Act 1981 as a legal or evidentiary burden on an accused person.

You can read our earlier posts on Momcilovic here (hat-tip to Michael Croucher and the CBA) and here (when the Court of Appeal decided the case).

It took me a bit longer to write this than planned, but that dratted real-life got in the way. I did at least get the chance to use that time to draw up a chart and — I hope — figure out what Momcilovic actually decided, for this is another of those cases which makes probably most of us wish desperately for joint or majority reasons. (Justice Michael Kirby discusses this in one of his many speeches, here. And the possibility of joint dissents is discussed in Dissent: the rewards and risks of judicial disagreement in the High Court of Australia [2003] MULR 28.

Does DPCS Act s 5 create a legal burden? Does the Charter require a different interpretation? Does DPCS Act s 5 apply to s 71AC? Is the Charter valid? Was the Charter s 36 declaration of inconsistency correct? Is DPCS Act inconsistent with Criminal Code? (Constitution s 109) Was the jury charge wrong? Orders
French CJ Yes Not applicable No Yes, except s 36 was beyond power in this case No, but it's not justiciable before the High Court No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Gummow J Yes Not applicable No Yes, except ss 33, 36 and 37 No, because it's invalid No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Hayne J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Agrees with Gummow J Yes Not answered Appeal allowed
Conviction quashed
2/3 costs
Heydon J Yes No, because it's invalid Yes No: the whole lot is invalid because of ss 7(2) or 32(1) or both. Or maybe just ss 33, 36 and 37 are invalid? Not expressly discussed, but given the Charter is invalid...yes! No No Appeal dismissed
Crennan & Kiefel JJ Yes No No Yes No. Probably not appropriate in a criminal trial because it undermines the conviction. Plus, DPCS Act s 5 didn't apply to s 71AC, so no inconsistency No Not answered Appeal allowed
Remitted for retrial
2/3 costs
Bell J Yes Yes Yes Yes Not answered Not answered Yes Appeal allowed
Remitted for retrial
2/3 costs

Now, the problem with my chart is that isn't the way the Court dealt with the appeal, with all 7 justices sequentially addressing 7 questions. (This case was one of those appeals — a bit like Fingleton v The Queen (2005) 227 CLR 166 — where the issues the High Court decided weren't precisely the same ones argued on the appeal, and they weren't the same ones argued below.)

But, as best I can tell, those were the issues that were decided. Of the judgments, I reckon French CJ's is the most important. Partly because he has the most logical structure (IMHO), and partly because most of the others refer to various aspects of his judgment. But each member of the Court contributes something different. For example, Heydon J provides (in my view) the best summary of the facts and puts the circumstantial case against the appellant fairly compellingly, at [372] – [376].

So, what did they all decide?

Does Drugs, Poisons and Controlled Substances Act s 5 impose a legal burden on an accused person?

Pretty much all members of the Court agreed the answer to this is "yes". See French CJ at [5], Heydon J at [464], [469], Crennan & Kieffel JJ at [510], [577] – [581], Bell J at [662] – [670]. Hayne J agrees with Gummow J, and he ain't exactly specific on this precise point, though reading [190] – [200], it seems he accepts that it is.

Does the Charter require interpreting s 5 as an evidentiary burden?

This is where the waters muddy.

French CJ, Gummow and Hayne JJ didn't address this. Heydon J said it doesn't, because the Charter is invalid: at [408] ff, especially [431], and [456] and [457].

Crennan and Kieffel JJ said no, but because s 5 doesn't apply to s 71AC: [607] – [612]. Bell J held the Charter does require a different interpretation, at [678] – [679].

Does s 5 apply to s 71AC?

By 5:2, the Court decided that the deeming provision doesn't apply to the offence of trafficking. The 5 were French CJ at [72] - [73], Gummow J at [133], Hayne J at [280], and Crennan and Kiefel JJ at [610]. I think Gummow J at [132] and Crennan and Kiefel J at [609] explain it most persuasively and clearly: the compound phrase 'have in possession for sale' has to be read as a single and indivisible phrase, and so contains a mens rea element of possessing for a purpose or intent. For that reason, it's impossible to deem the possession because the relevant possession requires intention.

I reckon the same reasoning will apply to several other offences in the Drugs Act: obviously the other trafficking charges contrary to ss 71, 71AA, 71AB, and probably the charge of possessing drugs for the purpose of trafficking etc contrary to s 71A.

Is the Charter valid?

This is an interesting question, and given the just-released review of the Charter, pretty topical.

First, I need to mention s 75(iv) of the Commonwealth Constitution, which provides original jurisdiction to the High Court on 'matters' between residents of different states. At the time of her trial, Momcilovic lived in Queensland, but was tried for Victorian allegations. That activated Federal jurisdiction in the case. The case could still be tried in the Victorian County Court because the content of the County Court's jurisdiction remained the same, but its source was different: see [99] – [100].

The upshot of this, according to French CJ, was that because the County Court was exercising federal jurisdiction, it could only do things the federal parliament has the power to bestow. Because Charter s 36 doesn't determine a matter between subjects — rather, it engages what's called the dialogue model of human rights — it was beyond federal power and invalid in this case: [100]. (That doesn't mean it would be invalid in a purely state case.)

Gummow J held that Charter ss 33, 36 and 37 were invalid for much the same reasons and the repugnancy doctrine established in Kable. Hayne J agreed with Gummow J: [280].

Heydon J held that whole Charter was invalid. First, he considered s 7(2) was invalid: at [408] ff and [431] especially. And s 32(1)? That was invalid too: [456]. Charter ss 33, 36 and 37? Invalid as well.

Crennan and Kiefel JJ considered s 36(2) was incompatible with the judicial function of federal courts, at [534], [584], but that wasn't the end of the matter. A declaration of inconsistency under s 36(1) wasn't an exercise of judicial power, but was incidental to it, and so valid.

Bell J wasn't concerned that the Charter was invalid.

So for a federal matter, the Court held 4:3 that the Charter — or at least, its main provisions — weren't valid. (It seems though that the States do have the power to make legislation like the Charter.) You can read a bit more on this idea in last Friday's Australian newspaper.

Was the Drugs Act inconsistent with s 109 of the Constitution?

This point cropped up as a result of the recent High Court case of Dickson v The Queen (2010) 241 CLR 491. (You can read my colleague's post on it here.)

Dickson dealt with inconsistency between federal and state provisions. The question in this case was there possible inconsistency because the appellant could have been charged with similar federal offences?

Ultimately, the majority held there wasn't.

Jury charge

Two members of the Court raised the adequacy of the jury charge. Heydon J held it was right; Bell J held it was wrong. But because Drugs Act s 5 didn't apply to s 71AC, I suspect it didn't really make much difference.

In summary...

Drugs Act s 5 is a legal burden, and doesn't apply to trafficking charges, and probably a few other offences as well. The Charter is probably valid for State matters, but is not for federal ones. Given the Charter might be changing soon, to point might be moot. (Rather than a moo point.)

Some twists?

Last, two interesting things to consider in this 702-paragraph epic.

First, at [126] - [129], Gummow J questions if prosecuting authorities can be challenged about infringing an accused person's Charter rights in their manner of prosecution. I suspect the Courts will be reluctant to entertain collateral attacks on prosecutions, but it does suggest a new basis for permanent stays.

Second, is the judgment of Heydon J. Though in the minority on many issues, his judgment is an entertaining read. If you read no other part of it, read [455].


Anonymous said...

Thanks for your precis. It might be my pc but the table gets cut off after "Orders".

Elucubrator said...

A problem with HTML coding and tables. Not sure why I can't get it to fit: it should expand and contract as we vary the page width, but I can't get it go below a minimum width. Beyond my meagre HTML skills I'm afraid.

Jeremy Gans said...

Nice summary of a fiendish case. But I think you're wrong to mark Bell as a 'yes' to 'Does the Charter require a different interpretation?'.

Bell joined two majorities of the High Court who gave the Charter's interpretation rule a narrow reading. She was the swing vote in a 4-3 majority who held that the interpretation rule can only be used to remedy unreasonable limits on rights (that's what she was talking about at [678]-[679]. Nothing to do with s5.) And she never got to rule on whether s5 was an unreasonable limit, because she was also part of a 6-1 majority (with Heydon J in dissent) holding that the Charter's interpretation rule cannot override traditional interpretation, so s5's legal burden had to stand regardless. So, she's either a 'no' or a 'did not decide' to the interpretation question.

In fact, she's clearly not that inclined to use the Charter to remedy breaches of the presumption of innocence, as she was one of two judges who held that s5 applied to trafficking. (And the other judge, Heydon, had held the Charter was invalid, so didn't have to decide.) I'd actually class her judgment as the most important one in the whole court, because she was the only one who dealt with the Charter and s109 issues entirely on their merits, rather than by dodging them through ordinary statutory interpretation or constitutional invalidation.

Elucubrator said...

Thanks Jeremy. I'll have another look at Bell's decision then.

One thing that was interesting about the case was what wasn't decided and why. In many ways, Momcilovic raises more questions than it answers!