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of Victoria, Australia The Criminal Bar Association is the peak body for
barristers in Victoria practising in the criminal law. Its members comprise
almost one quarter of all barristers practising in Victoria and it counts
almost one third of Victoria's judiciary among its Honorary Members. The
Association represents criminal barristers who principally prosecute,
those who principally defend and those who have a mixed practice. |
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USEFUL LINKS                 |
LATEST NEWS 10 October 2011 NEW VLA fees download just added to site. You can download the latest version below
9 September 2011
Dear CBA members, Please see the following update concerning the High Court’s decision on the 8th of September 2011 in Momcilovic v The Queen [2011] HCA 34. Momcilovic v The Queen [2011] HCA 34 Yesterday, the High Court handed down judgment in Momcilovic v The Queen [2011] HCA 34. The decision has important implications for cases of alleged drug trafficking contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Drugs Act”) in which s 5 of the Drugs Act is relied on. Section 5 provides as follows: “Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.” Ms Momcilovic was charged with trafficking methylamphetamine contrary to s 71AC. At trial in the County Court, there was evidence that methylamphetamine was found at premises Ms Momcilovic owned and lived in. The case was put against her as one of trafficking based on possession for sale pursuant to the extended meaning of trafficking in s 70 of the Drugs Act. Ms Momcilovic and her partner Mr Markovski gave evidence that she had no knowledge of the drugs. Mr Markovski said the drugs were his. In a separate trial, he had pleaded guilty to trafficking those drugs and others. In seeking to prove that Ms Momcilovic was guilty of trafficking based on possession for sale, the prosecution relied on s 5 and the trial judge gave directions on that topic. Ms Momcilovic was convicted and sentenced to a term of imprisonment. Her application for leave to appeal against conviction was refused by the Court of Appeal (although her appeal against sentence was allowed). The Court rejected a submission that, upon its ordinary construction or pursuant to the interpretive rule created by s 32(1) of the Charter of Human Rights and Responsibilities 2006 (Vic) (“the Charter”), s 5 should be read as casting only an evidential – rather than a legal – onus of proof on an accused with respect to possession. Instead, the Court concluded that, because s 5 could not be interpreted consistently with the presumption of innocence under s 25(1) of the Charter, there should be a declaration of inconsistent interpretation under s 36(2) of the Charter. The Court also rejected a submission that, despite the applicability of s 5, the trial judge had erred by failing to direct the jury that, if they considered it probable that Ms Momcilovic knew of the drugs but they entertained a doubt about that matter, it was their duty to acquit. In the High Court, by a majority (French CJ, Gummow, Hayne, Crennan and Kiefel JJ), it was held that s 5 did not apply to the offence of trafficking contrary to s 71AC. Their Honours further held that Ms Momcilovic’s trial had miscarried because the jury had been directed that s 5 did apply. Bell J held that s 5 did apply to s 71AC but nevertheless that the trial judge had erred by failing to direct the jury that, if they considered it probable that Ms Momcilovic knew of the drugs but they entertained a doubt about that matter, it was their duty to acquit. Heydon J held that s 5 did apply to s 71AC and that there was no misdirection. In the result, by a majority (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J dissenting), Ms Momcilovic’s appeal was allowed, her conviction was set aside and a retrial was directed. The Court agreed with the Court of Appeal’s conclusion that s 5 could only be interpreted as casting a legal onus of proof on an accused. French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ (Hayne J dissenting on this point) held that s 71AC was not invalid for inconsistency with s 302.4 of the Criminal Code (Cth). A majority of the Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) held that s 32(1) of the Charter operated as a valid rule of statutory interpretation. Heydon J held that no part of the Charter is valid. French CJ and Bell J held that s 36 of the Charter was valid but that there could be no appeal to the High Court from a declaration made under that section. Crennan and Keifel JJ held that s 36 was valid but that a declaration of inconsistent interpretation should not have been made in this proceeding. Gummow, Hayne and Heydon JJ held that s 36 was invalid for impermissibly impairing the institutional integrity of the Supreme Court. As a majority of the Court was of the view that the declaration of inconsistent interpretation made pursuant to s 36 was either invalid or ought not to have been made in this case, the Court ordered that the declaration be set aside. Whilst there is no substitute for reading the Court’s judgment (which is 702 paragraphs in length), it is helpfully summarized on the Court’s website (from which part of the foregoing summary is taken). The CBA intends to conduct a seminar on the Court’s judgment in the near future. Details will be advised shortly. 5 September 2011 CPD 5 September
Lasry J & Judge G Mullaly are presenting a CPD this coming Monday on the Verdins principles in sentencing. I urge you to attend to hear these two engaging speakers, on a very important topic. Unfortunately, the last CPD, which covered the use of the JCV website, attracted only a very small audience (2 attendees). It is difficult to attract good speakers unless we can get good numbers. I urge you (and I know many do) to keep attending our CPDs well past earning your 10 points. The more numbers we attract, we can ensure the quality of the speakers and seminars - win / win!
Emmanual Abdulai dinner 20 September Emmanual Abdulai Dinner Download PDF In an earlier email, I let you know that Ash Halphen won a pro bono award for his work in Sierra Leone. Now, Ash has organised for the human rights lawyer he worked with, Emmanual Abdullai, to come to Australia to speak to us. The CBA and Vicbar are sponsoring the trip. In order to recognise and hear about Emmanual's work, a dinner will be held at the Essoign on Tuesday 20 September. In addition to Emmanual, Lasry J and journalist Darren Lunny are speaking. Please mark this date in your diary, and come along to support this very worthwhile event.
Workshops Could those participants who have registered for the appellate workshop please pay the registration fee as soon as possible. If you have registered but are now unsure about attending, please speak to Simon Moglia. We are arranging a truly high calibre teaching panel, and it is important that we have 18 participants at the introductory seminar and then at the workshop. The plea making workshop is scheduled for 3 March 2012, and the advanced cross examination workshop is to be held on 31 March 2012. In addition, I have booked the following dates for further workshops: 26 May 2012 General / foundation skills for junior barristers 1 day, 24 participants (beginners) 25 August 2012 Working with juries - mid level skills required, 1 day, 18 participants All payments / expressions of interest should be directed to Simon Moglia smoglia@vicbar.com.au
CBA Dinner The dinner this year will be held on 4 October 2011 at Matteo's. More details to follow, but put this in your diary now!
Annual General Meeting The AGM and drinks will be held on 18 October 2011. Nomination forms and the notice will be disseminated shortly. Greg Lyon, Chair, CBA 17 August 2011 Victim Impact Statement news On 23 August and 31 August 2011 VLA, the CBA and Vicbar will host seminars and workshops on how to prepare written cases for the Court of Appeal. The first workshop deals with written cases for appeals against sentence; the second workshop with conviction appeals. As the changes to the appeal process are now in their 6th month, these workshops are very important and timely. There is now enough experience within the Court of Appeal registry and in practitioners to make these meaningful and practical demonstrations as to how to get the documents right, and what pitfalls to avoid. Register as soon as possible - places have to be limited to 30. Appeals Against Conviction Skills Workshop Appeals Against Sentence Skills Workshop 22 September Victim Impact Statement news Following is a link to a report on the ABC news last night relating to Victim Impact Statements: http://www.abc.net.au/news/video/2010/09/21/3018208.htm?site=melbourne 21 September Stateline – ABC An interview by Josephine Cafagna from the ABC program Stateline of your new Chair, Greg Lyon SC, in relation to ‘Calls for Tougher Sentences’ can be found at: http://www.abc.net.au/news/video/2010/09/17/3015277.htm 17 September CRIMINAL BAR AGM Last night we had our Annual General Meeting. Please click here to access the minutes. Your new committee is:
Ordinary committee:
Appointed and consultative members:
Many thanks to the hard work of the outgoing committee over the past year, in particular Chair, John Champion SC, and Vice-Chair, Michael O’Connell SC. 26 August 2010 Latest News: Court of Appeal- Changed Listing & Procedures for Applications for Leave To Appeal - Term 4 2010: Members need to be aware of the changes as set out in Notification dated 24/8/2010 from the Registrar Court of Appeal. 26 May 2010 Abolition of Suspended Sentences of Imprisonment: As members are aware, The CBA opposes moves to restrict the ability of Courts to impose suspended imprisonment sentences. John Champion’s recent article in the Age newspaper together with the letter by Benjamin Lindner can be accessed through the following links. 23 March 2010 Latest Cases: MOMCILOVIC [2010] VSCA 50- The Court of Appeal has handed down its judgment in this case dealing with the challenge to section 5 Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 5. Judicial
Interested in
reading about changes to sentencing law brought by the Evidence Act 2008,
and the Criminal Procedure Act 2009?
AND
1. Police Summary Case Conference Managers
2. Magistrates’ Court Co-ordinators
15 March 2010 Criminal Trial Specialist Accreditation Scheme: One of its recommendations is for the Attorney- General to look at the introduction of a Public Defender Scheme in Victoria. Members are encouraged to read the report, its recommendations and the ramifications flowing therefrom. The Report can be accessed through the VLRC website. 22 February 2010 Suppression Orders: Members who wish to find out whether a suppression order exists and any terms, are able to contact the following: County Court- Ms Anna Bolger, Communications Manager, Tel; 86366272, Email: anna.bolger@countycourt.vic.gov.au Supreme Court- Ms Anne Stanford, Strategic Communications Advisor, Tel: 96036111, Urgent inquiries M: 0400033522, Email: anne.stanford@supremecourt.vic.gov.au |
COMMITTEE Chair: Vice Chair: Treasurer: Secretary: Ordinary Committee Members: Appointed Committee Members: Consultative members: |
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