What’s in the fridge?
- In Momcilovic v The Queen, the accused was charged with possession of a drug of dependence (methylamphetamine).
- Under the Drugs, Poisons and Controlled Substances Act 1981, it is up to the owner of the premises where drugs are found to disprove that the drugs were in their possession, thereby reversing the burden of proof.
- Momcilovic claimed the drugs found in her apartment belonged to her boyfriend.
- The High Court agreed that the Drugs Act imposed a legal burden on the accused to disprove the offence on the balance of probabilities, and that this was inconsistent with the right to the presumption of innocence contained in the Victorian Charter. However, the Court did not find that the law wasinvalid.
- The result of Momcilovic v The Queen is that it is within the power of the Victorian Parliament to pass legislation that reverses the onus of proof, contrary to the Charter right to the presumption of innocence.
- Parliament might choose to reverse the burden of proof and the presumption of innocence in some cases because it considers that the individual human right to the presumption of innocence is secondary in the public interest to the successful prosecution of drug offences. Reversing the onus of proof for such offences is deemed necessary to ensure more effective law enforcement.
