Previews of Momcilovic

Today will see the commencement of the High Court hearing in Momcilovic v The Queen. The case, as most readers of this blog (all two or three of us...) are aware, concerns the interaction between the Charter of Human Rights and Responsibilities and the reverse onus provisions in the Drugs, Poisons and Controlled Substances Act. One tip I've heard suggests that all States and Territories will make submissions in response to the s78B constitutional notices and the case will run all week, an incredibly long time for a High Court hearing.

Unfortunately, I won't be able to attend the hearing, so like the rest of us, will have to make do with anything the Castan Centre and others provide on Twitter and media reports on the hearing. However, the media discussion of the case have already started in the Herald Sun.

Last weekend saw the Herald Sun run an editorial and opinion pieces by media lawyer Justin Quill and journalist James Campbell. The tone between the articles was consistent, predicting disastrous outcomes in all directions. The editorial states that:

...[A] legal source said if the High Court found in her favour, drug

convictions could be overturned and legal "anarchy" could erupt. "Thousands and thousands of drug convictions will be voided if this appeal gets up," said the legal figure. But should the High Court dismiss her application, the same source said it would render the Charter of Human Rights worthless.

Now, let's all take a deep breath amidst these warnings of impending anarchy.

First, while I'm aware of the hypocracy of an anonymous blogger calling for transparency, I'm interested in knowing the identity of the 'legal source' quoted by the Herald Sun editorial and James Campbell. To present a competing view, I will likewise make an anonymous prediction that the case will have limited impact on drug convictions in general. If the High Court upholds Momcilovic's arguments, it means the prosecution will not be able to rely on the reverse onus provision. But, as senior counsel for the Crown argued in the Court of Appeal, the reverse onus provision is rarely needed and imposing only an evidentiary onus would make little difference:

Far from submitting that the imposition of a reverse legal onus was essential to the task of successfully prosecuting trafficking offences, senior counsel candidly acknowledged that a change from a persuasive onus to an evidentiary onus would make little difference. Pressed by the Court, counsel eschewed any suggestion that a change of the onus from persuasive to evidentiary would make a major or demonstrable difference to drug trafficking prosecutions. As to the need for evidence, he submitted that empirical evidence of the efficacy of the persuasive onus would have been virtually impossible to obtain. It was mere speculation, he said, whether the outcome in a particular trial would have been different had the prosecution not been able to rely on a reverse legal onus.

The unimportance of the reverse onus provision was part of why the Court of Appeal found that it was not demonstrably justified.

Secondly, if the High Court rejects the appeal on a narrow basis, then the Charter will be in the same position as it was after the Court of Appeal decision. That is, the declaration of inconsistent interpretation will stand, and the Charter functions as it was intended to do - To promote a dialogue between Parliament and the Courts about whether Victorian legislation is consistent with human rights principles. To describe this outcome as showing the Charter is 'worthless' assumes that the Charter had a very different purpose to what was intended. Again, as the Court of Appeal explained, the Charter was not meant to upset or radically change the balance between the legislature and the judiciary.

Indeed, the outcome that poses the greatest risk to the Victorian Charter, as well as the ACT Charter and any future Human Rights instruments, is that the High Court rejects the defence argument on a broad basis by overturning the declaration of incompatibility because it is not an exercise of judicial power. That, I suspect, is the outcome most Charter supporters dread, rather than the risk that the Charter will fail to live up to a (non-existent) promise to radically change the settled interpretation of numerous statutes. And, that is the outcome I'll be closely looking for when reading the transcript of argument, hoping to pick up any hints of which way the High Court is leaning.

In the mean time, we'll just have to watch, wait and stay calm. Because predictions of legal anarchy are neither accurate nor helpful.

Update – One angle of the case I neglected to mention, in light of my focus on Charter issues in this post, concerns the consequences of the High Court’s decision last year in R v Dickson. As Jeremy Gans predicted at the time, that decision could potentially undo large sections of State drug laws, and upset every conviction under those laws since the introduction of commonwealth drug laws in 2005.

Sure enough, this aspect of the case seems like it will be the main focus of the appeal, with the Human Rights Law Resource Centre tweeting:

Cth Crim Code & Constitution relied on to challenge Vic Drug Act. Vic Charter only relied on to uphold presumption of innocence #Momcilovic

Also, here's a piece from The Age about the case, where it looks like the Commonwealth will be arguing for the concurrent application of State drug laws.

A successful challenge to Victorian drugs legislation on constitutional bases could indeed lead to some chaos in the legal system. To that extent, the Herald Sun’s unnamed legal source was right. It’s just a bit that he or she decided to throw in the distraction of also speaking about the Charter which could end up as little more than a sideshow in this appeal.