Drug traffickers could fight convictions

Melissa Jenkins

Australia's highest court has made a landmark ruling that will make it harder to prosecute people for drug trafficking in Victoria and has prompted the state government to consider changing the law.

The High Court decision could also pave the way for some convicted drug traffickers to appeal, while civil rights advocates are hailing it as a major slapdown to critics of the Victorian human-rights charter.

The court on Thursday ordered a retrial for Melbourne solicitor Vera Momcilovic, who was convicted of trafficking after drugs were found in her apartment, where she lived with partner Velimir Markovski.

In a separate trial, Markovski was convicted of trafficking methylamphetamine and cocaine.

At that trial, the pair gave evidence she did not know drugs were in the apartment.

Momcilovic argued it was contrary to the charter of human rights that, under Victorian drug laws, it is up to defendants to prove drugs do not belong to them if they are found in a premises they occupy.

The jury was directed that once it was proven that Momcilovic occupied the apartment she was considered in possession of the drugs unless she satisfied them otherwise.

The High Court found the reverse onus provision of the Drugs Act did not apply to the offence of drug trafficking and the jury had been misdirected.



Mark Woods, from the Law Institute of Victoria, said the most significant aspect of the ruling was the way police pursued cases of drug trafficking.

Mr Woods said that until this ruling police could charge all tenants with possession and trafficking if they uncovered a significant amount of drugs in a shared house.

"The police (now) have to be able to prove that each of those individually had the intent to traffic," he told AAP.

Mr Woods said the ruling could also pave the way for some people convicted of drug trafficking offences to appeal.

A spokesman for Victorian Attorney-General Robert Clark said the state government would consider amending the Drugs Act and also whether the High Court decision required any change to how government and other public bodies operated under the human rights charter.

Human Rights Law Centre executive director Phil Lynch said six of the seven judges ruled that the section of the charter requiring laws to be interpreted in a way compatible with human rights was valid.

Mr Lynch said the court had affirmed the charter's validity and closed the door on the argument that the charter transfers power from parliament to the courts.

"The High Court has spoken six to one saying that the charter does not empower the court to radically reinterpret legislation but instead maintains parliamentary sovereignty," he said.

A review of the charter is due to be tabled in parliament next week.

Earlier this week, the Homeless Person's Legal Clinic urged the government to strengthen the charter so public housing tenants who believe their human rights have been breached can have their cases heard in the Victorian Civil and Administrative Tribunal rather than the Supreme Court.


(2011-9-8/AAP)