A Reverse Onus Reviled and Retained—R v Momcilovic
| Author | Jeremy Gans |
| DOI | 10.1350/ijep.2010.14.3.357 |
| Published date | 01 July 2010 |
| Date | 01 July 2010 |
| Subject Matter | Case Note |
CASE NOTE
A REVERSE ONUS REVILED AND RETAINED—RVMOMCILOVIC
CASE NOTE
A reverse onus reviled and
retained—RvMomcilovic
By Jeremy Gans*
Associate Professor, Melbourne Law School
Keywords Presumption of innocence; Reverse onus; Statutory interpretation;
Human rights; Court declaration
n 14 January 2006, patent lawyer Vera Momcilovic opened the door to
her apartment at Melbourne’s Regency Towers to a legal nightmare. Two
police officers, who had tracked some drug traffickers to their supplier,
Momcilovic’s boyfriend Vilimir Markovski, were there with a search warrant.
Under Victoria’s drug law, what they found—around half a kilo of methyl-
amphetamine in the fridge and some cupboards—was enough to convict not just
Markovski but also his girlfriend of trafficking.
Momcilovic’s potential salvation came half a year later, when the Victorian
Parliament enacted Australia’s second bill of rights statute, the Charter of Human
Rights and Responsibilities Act 2006 (Vic). Landmark rulings on the special rules of
proof that apply in drug prosecutions are a mainstay of modern human rights law.
Such judgments in Canada, South Africa, England, Hong Kong and New Zealand
have not only condemned such rules but have also emerged as major precedents
on the operation of rights statutes.1With RvMomcilovic,2Victoria and its rights
Charter join this not very exclusive club.
doi:10.1350/ijep.2010.14.3.357
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2010) 14 E&P 253–259 253
1RvOakes [1986] 1 SCR 103; SvBhulwana, S vGwadiso [1995] ZACC 11; RvLambert [2001] UKHL 37;
HKSAR vHung Chan Wa [2006] HKCFA 85; Hansen vR[2007] NZSC 7.
2 [2010] VSCA 50.
O
* Email: Jeremy.gans@unimelb.edu.au.
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