Victoria’s First Declaration of Inconsistent Interpretation
On 17 March 2010, the Victorian Court of Appeal announced its intention to issue its first Declaration of Inconsistent Interpretation under the Victorian Charter of Human Rights and Responsibilities (‘the Charter’).
The applicant, Vera Momcilovic, was convicted for trafficking of drugs found in her apartment. Section 5 of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (‘DPCS Act’) imposes on the applicant the legal burden of proving to the Court that she was not in possession of the drugs. The Court held that it was not ‘possible’ to interpret s 5 consistently with the right to the presumption of innocence. On its ordinary meaning, s 5 imposed a legal burden on the accused. Since this was the clear intent of parliament, the Court found that it was not possible to ‘read down’ the legal burden in section 5 of the DPCS Act to an evidential one. Once again the decision confirms that s 32 of the Charter does not operate as a ‘special’ rule of statutory interpretation that permits courts to depart from the ordinary meaning of legislation.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2010/50.html.
Editors Note:
A special leave application has been made to the High Court of Australia. It is expected that the case will be listed in June/ July 2010.
