The Castan Centre 10th Anniversary Series
R v Momcilovic: Human Rights Victory or Individual Injustice?
28 April 2010
Held at the Monash University Law Chambers, Melbourne
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On 17 March this year, the Victorian Court of Appeal issued its first declaration of incompatibility under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), stating that Section 5 of the Drugs, Poisons and Controlled Substances Act 191 (Vic) is incompatible with the right to be presumed innocent until proven guilty. The case concerned a woman, Vera Momcilovic, who was convicted of trafficking in a drug of dependance. She was deemed by section 5 to be in possession of the drugs because they were found on her premises. The court chose to make the declaration of incompatibility instead of using its power to make a rights-compatible interpretation of section 5. Because a declaration does not invalidate the law in question, Vera Momcilovic's conviction will stand.
Michael Croucher will consider how the Momcilovic decision impacts on the right to the presumption of innocence and whether the case delivered justice for Vera Momcilovic. He will also explore the court's understanding of the Charter's interpretation and declaration powers, and how this decision may affect litigation strategy.
Michael Croucher is a member of the Victorian Bar and represented Vera Momcilovic in the recent Court of Appeal case, R v Momcilovic.  VSCA 50. Michael practices principally in criminal law with a particular emphasis on appeals.