Introduction
The legal justice system is full of cases and precedents that have attracted the attention of analysts within and beyond the various jurisdictions. One such case is the one involving Momcilovic v The Queen. The legal suit involved the rights of a classic reverse onus provision in the Drugs, Poisons, and Controlled Substances Act 1981 (Vic) (‘Drugs Act’). The appellant was convicted of trafficking in methyl amphetamine. According to the Commonwealth laws (under section 302.4), it is stated that trafficking in drugs is a criminal offence. It has a prescribed penalty that is stiffer than state offence and sentencing codes. Different judgments were given concerning the case at hand. A number of sections in Drugs, Poisons and Controlled Substances Act 1981 were the source of the discrepancies. They included sections 5, 71AC and 73(2).
In this paper, the author is going to critically analyse the various aspects related to Momcilovic v The Queen. Some of the issues reviewed include material facts surrounding the case, legal reasoning employed by the judges, judgements concerning the case, and the opinions of the judges with regards to s109.
Momcilovic v The Queen: Material Facts of the Case
The High Court’s decision in Momcilovic vs the Queen discussed a number of issues. In judicial review legislation, some facts were put into consideration. The high court declared inconsistent interpretation was not a judicial function. It suggested that the Victorian and ACT courts could approach the evidence provided by for the case in a different way. The way to be applied could not be applied by the High Court. Different constitutional issues were raised from the case.
The constitutional issues raised from section 71AC were termed as invalid. They arose due to discrepancies associated with section 109. The section was in conflict with the identical crime of trafficking. The latter was in section 302.4 of the Federal Criminal Code (Cth). The three judgments in this case can be categorised as the Court of Appeal judgment, High Court Judgment, and Supreme Court judgment.
Legal Reasoning employed by the Judges in Momcilovic v The Queen
Judges concerned in hearing the case had to reason in regards to the s 71AC of the Drugs Act and S 302.4 of the Code. The two provided different forms of justice concerning the case. It was therefore important for the judges to compare the facts about case with the provisions of the constitution to see what was invalid. The reasoning of Crennan and Kiefel JJ was different. They held that the peddling was inconsistent with a similar Commonwealth offence. As a result, they determined that it was not valid under s19 of the Constitution. The main reason behind Vera Momcilovic’s appeal was the fact that the conviction was contrary to s71AC of the Drug Act. The extent of inconsistency indicated that something less than the whole state or federal statute in question would be relevant to the law. The constitutional issue brought out in the case would either be solved independently by the High court or the Federal court. The provisions of the constitution differed in giving penalties and in stipulating the contents to be observed. When giving judgement, the judges also considered some of the past cases that were determined in the same way. The view of Griffith CJ on the test of inconsistency was applied in giving judgement to the case. The view conveyed exhaustively what inconsistency stipulated in s109. Operational inconsistency was applied by the judges to give a conclusion on the case and regarding the operation of s109 of the constitution.
What the Judges had to Say about Section 109
Section 109 of the constitution states that ‘when a law of a state is inconsistent with a law of the commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency’. Momcilovic v The Queen was characterised by different arguments from the judges with regards to s109. The section elaborates on the direct and indirect inconsistency. In the ruling, it is clear that the indirect inconsistency was applied. In this case, simultaneous test and conferrals of the rights points out that it is impossible to obey both laws. Laws that contradicted simultaneous and inconsistency legislations would rise where one law was responsible in taking away the right to conferral of the other law respectively. The case did not apply the common laws as the only law in providing judgment in the case. As such, it made some of its section invalid so as to match with the domestic laws. The rule will not be applied in cases of inconsistencies with Commonwealth laws.
Gummow J.
The judge ruled out that the inconsistence between s 302.4 of the Code and s 71AC of the drugs Act had to be determined solely with reference to differences between elements of the two offences. That was to be done in reference to how they appear in ss 302.4 and 71AC. The judge concluded that inconsistency would appear in either one of the provisions or in both of them. The issue on the penalty to the crime and the different methods of determining jury trial brought inconsistency. I agree with the reasoning of Judge Gummow J on the fact that inconsistency could apply in either laws. It means that the differences in the interpretation of the law would be brought about by s 302.4 of the code or 71 AC of the Drugs Act. Neither of the laws therefore could be claimed to be the source of inconsistency. Both laws conflicted. By the fact that drugs were found in the house which the defendant occupied, it does not mean that the drugs belonged to her as s 302.4 stipulates. Section 71AC proved that the criminal did not possess a quantifiable about of drugs for trafficking. The conflict between possession and the quantity in possession brought inconsistency between the laws.
I agree that it was inconsistent with the provisions of the Criminal code 1995(Cth). Inconsistence of the two laws could be seen in the penalties provided and the interpretation of the constitution. Maximum penalty for being in possession of the prescribed amount of drugs according to s 71AC was imprisonment for 15 years.
Ruling of French CJ and other judges
The appellant in this case argued about the inconsistency brought about by s 109. Both s 71AC of the Drugs Act and 302.4 of the Code stated the elements of the offence and the maximum penalty as well. The penalty for the crime in the Victorian law was 15 years while the Commonwealth provided 10 years in prison. The conviction of the offence was to be heard by 10 judges while the commonwealth was by unanimous judges. S 302.4 provided a imprisonment period of 10 years. The difference in years brought a conflict in the handling the two cases.
Judge Hayne J. ruling
Judge Hayne J disagreed about the engagement of s 109 in the case. He further explained that s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Drugs Act”) is inconsistent with s 302.4 of the Criminal Code (Cth) (“the Code”) and is thus invalidated by s 109 of the Constitution. According to him, the application of section 109 raised issue of fundamental constitution importance. Judge Hayne stated that instead of having a fresh trial, it was right to declare s 71AC of the drugs Act to be inconsistent with s 302.4 of the code and this invalid. According to the court, he descried that a case cannot be divided into two parts. Each of the laws stated had to be applied in the best way possible and to avoid inconsistency, there had to be one which was to be applied. According to him the application of s302.4 of the code or s71AC of the Drugs Act was more than just to announce to the society but make a meaningful conclusion regarding the case.
Conclusion
Momcilovic v The Queen [2011] is associated with controversies brought about by the way different judges interpreted the Constitution. Confusions arose between the Commonwealth legislation on criminal code and the State Legislation on the drug Act. The charter had to be invalidated. The reason was that it was going against the Commonwealth law. High Court Judges French CJ, Gummow, Hayne, Crennan, and Kiefel JJ concluded that s5 did not in any way apply to the offence of trafficking in s71AC of the Drugs Act.
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