HIGH COURT OF AUSTRALIA FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ VERA MOMCILOVIC APPELLANT AND THE QUEEN & ORS RESPONDENTS Momcilovic v The Queen [2011] HCA 34 8 September 2011 M134/2010 ORDER 1. Appeal allowed. 2. Set aside paragraphs 1-5 of the order of the Court of Appeal of the Supreme Court of Victoria dated 25 March 2010, and in their place order that: (a) the appellant have leave to appeal against her conviction; (b) the appeal be allowed; (c) the appellant's conviction be quashed and sentence set aside; and (d) a new trial be had. 3. The second respondent pay two-thirds of the costs of the appellant in this Court. On appeal from the Supreme Court of Victoria Representation M J Croucher and K L Walker with C A Boston for the appellant (instructed by Melasecca, Kelly & Zayler) G J C Silbert SC with B L Sonnet and C W Beale for the first respondent (instructed by Solicitor for Public Prosecutions (Vic)) S G E McLeish SC, Solicitor-General for the State of Victoria with J M Davidson and A M Dinelli for the second respondent (instructed by Victorian Government Solicitor) S P Donaghue with E M Nekvapil for the third respondent (instructed by Victorian Equal Opportunity and Human Rights Commission) Interveners S J Gageler SC, Solicitor-General of the Commonwealth with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 8, 9 and 10 February 2011 H C Burmester QC with R M Doyle SC and A D Pound intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor) at the hearing on 7 June 2011 R J Meadows QC, Solicitor-General for the State of Western Australia and R M Mitchell SC with C L Conley intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA)) M G Sexton SC, Solicitor-General for the State of New South Wales and K M Richardson intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 8, 9 and 10 February 2011 M G Sexton SC, Solicitor-General for the State of New South Wales with M L Rabsch intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW)) at the hearing on 7 June 2011 G L Sealy SC, Solicitor-General for the State of Tasmania with S Gates intervening on behalf of the Attorney-General for the State of Tasmania (instructed by Crown Solicitor for Tasmania) M G Hinton QC, Solicitor-General for the State of South Australia with C Jacobi intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor (SA)) M A Perry QC with P J F Garrisson and K A Stern intervening on behalf of the Australian Capital Territory Attorney-General (instructed by ACT Government Solicitor) M K Moshinsky SC with C P Young appearing as amicus curiae on behalf of the Human Rights Law Centre Ltd (instructed by Allens Arthur Robinson) FRENCH CJ. Introduction 1. The main purpose of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ("the Charter") is "to protect and promote human rights"[1]. The mechanisms by which it seeks to achieve that purpose include[2]: . "setting out the human rights that Parliament specifically seeks to protect and promote"; and . "ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights." The rights are set out in Pt 2 of the Charter and include the right of a person charged with a criminal offence to be presumed innocent[3]. This appeal, from the Court of Appeal of the Supreme Court of Victoria, was brought by Vera Momcilovic against her conviction for trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) ("theDrugs Act"). Section 5 of the Drugs Act provides that a substance on premises occupied by a person is deemed, for the purposes of the Act, to be in the possession of that person unless the person satisfies the Court to the contrary. The appeal raises a number of issues: . Whether s 5 of the Drugs Act should be interpreted, pursuant to the Charter, as placing on a person charged with an offence under the Act involving possession of drugs, only the evidential burden of introducing evidence tending to show that drugs found on premises occupied by that person were not in that person's possession. Whether s 5 applies to the offence of trafficking in drugs created by s 71AC of the Drugs Act. Whether s 71AC is invalid by reason of inconsistency with a provision of the Criminal Code (Cth) ("the Code") creating a similar offence with a different penalty. Whether s 36(2) of the Charter, which provides that the Supreme Court may make a declaration that a statutory provision cannot be interpreted consistently with a human right, is valid and amenable to the appellate jurisdiction of this Court. Whether, given that the appellant was a resident of Queensland at the time she was charged in Victoria, the County Court of Victoria and the Court of Appeal were exercising federal jurisdiction and, if so, whether that has any effect on the outcome of this appeal. 2. There are four key provisions of the Charter in issue in this appeal. The first is s 25(1), which provides: "A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law." Section 25(1) informs the interpretive principle set out in the second key provision, s 32(1): "So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights." The third key provision is s 7(2), which provides that a human right may be subject under law to such reasonable limits as can be justified in a free and democratic society based on human dignity, equality and freedom. 3. The fourth key provision, s 36(2) of the Charter, authorises the Supreme Court, when it is of the opinion that a statutory provision cannot be interpreted consistently with a human right, to make a declaration to that effect. The declaration does not have any legal effect on the outcome of any proceedings before the Court nor on the validity of the statutory provision the subject of the declaration[4]. 4. The appeal was argued in the Court of Appeal as a case primarily concerned with the application of the interpretive rule under s 32(1) of the Charter, and the presumption of innocence under s 25(1) of the Charter, to s 5 of the Drugs Act. The appellant argued in this Court that, contrary to the finding of the Court of Appeal, s 5 should be interpreted as imposing only an evidential burden on an accused person to negative possession. On that interpretation, if the accused person could point to some evidence tending to show that he or she was not in possession of the substance, the legal burden would rest on the prosecution of proving possession beyond reasonable doubt. The appellant also argued that s 5, properly construed, does not apply to the offence of trafficking in drugs created by s 71AC. 5. For the reasons that follow, the appellant cannot succeed on her first Charter point relating to the burden of proof imposed by s 5. Neither the common law, nor the interpretive rules contained in theInterpretation of Legislation Act 1984 (Vic) ("the Interpretation Act") and in s 32(1) of the Charter, can transform s 5 of the Drugs Act so as to reduce the legal burden which it imposes to an evidential burden. However, properly construed by reference to the Charter, s 5 does not apply to the trafficking offence with which the appellant was charged so as to lift from the prosecution the burden of proving that she knew of the existence of the drugs she was said to be trafficking. On that basis alone, the appellant succeeds in the appeal and is entitled to a retrial. Her further contention, that the provision creating the offence with which the appellant was charged is inconsistent with similar provisions of the Code and thereby invalid by operation of s 109 of the Constitution, should not be accepted. 6. The Court of Appeal made a declaration under s 36 of the Charter that s 5 of the Drugs Act cannot be interpreted consistently with the presumption of innocence under s 25(1) of the Charter. One of the orders sought by the appellant involved setting aside that declaration. The proposition that this Court should make such an order rested upon two premises: 1. That s 5 could be construed, compatibly with the right of a person accused of a criminal offence to be presumed innocent, so as to impose on that person only an evidential burden. 2. That the Court has jurisdiction to entertain an application to set aside a declaration under s 36. Neither of the premises is satisfied. Although, in my opinion, s 36 validly conferred a non-judicial function on the Court of Appeal, it was not incidental to the Court's judicial function and was not, in any event, amenable to the appellate jurisdiction of this Court under s 73 of the Constitution.