Kalbasi v Western Australia

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Bell,Keane,Gordon JJ.,Gageler J.,Nettle J.,Edelman J.
• Judgment Date: 14 March 2018
• Neutral Citation: [2018] HCA 7
• Court: High Court
• Docket Number: P21/2017
• Date: 14 March 2018

[2018] HCA 7

HIGH COURT OF AUSTRALIA

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon AND Edelman JJ

P21/2017

Pouyan Kalbasi

Appellant

and

The State of Western Australia

Respondent

Representation

T A Game SC with P McQueen and G E L Huxley for the appellant (instructed by Lavan)

A L Forrester SC with K C Cook for the respondent (instructed by Director of Public Prosecutions (WA))

Criminal Appeals Act 2004 (WA), s 30.

Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11, 33(1), 34.

Criminal law — Appeal against conviction — Application of proviso — Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another — Where police replaced prohibited drug with another substance — Where trial judge and counsel erroneously assumed s 11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another — Where jury erroneously directed that proof of possession of substitute “drugs” would suffice to prove intention to sell or supply to another — Where intention not otherwise live issue at trial — Where sole issue at trial was appellant's possession of substitute “drugs” — Where prosecution concedes erroneous direction as to intention but contends “no substantial miscarriage of justice has occurred” — Whether “no substantial miscarriage of justice has occurred” — Whether misdirection precluded application of proviso.

Words and phrases — “deemed intent”, “error of outcome”, “error of process”, “fundamental defect”, “fundamental error”, “fundamentally flawed”, “inevitability of result”, “intention”, “loss of a fair or real chance of acquittal”, “miscarriage of justice”, “negative proposition”, “proviso”, “reasonable jury”, “substantial miscarriage of justice”, “this jury”.

Kiefel CJ, Bell, Keane AND Gordon JJ.

Introduction

1 Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (“the MDA”) makes it an offence to be in possession of prohibited drugs with intent to sell or supply them to another. Section 11 of the MDA operates to deem a person who is in possession of a specified quantity of a prohibited drug, subject to proof to the contrary, to have it in possession with intent to sell or supply to another. In the case of methylamphetamine, a prohibited drug, the quantity which enlivens the operation of s 11 is two grams. In Krakouer v The Queen1 it was held that s 11 has no application on the prosecution of a charge of attempted possession of a prohibited drug.

2 The appellant was tried in the District Court of Western Australia (Stevenson DCJ and a jury) on an indictment that charged him with attempting to supply a prohibited drug, methylamphetamine, with intent to sell or supply it to another 2. This was a re-trial following an earlier successful conviction appeal 3. It was the State's case that the appellant attempted to possess a consignment of 4.981 kg of methylamphetamine. Notwithstanding the decision in Krakouer, it appears that the judge, the prosecutor and senior and junior counsel for the defence all assumed that s 11 of the MDA applied to the trial of the charge of attempted possession. The jury was directed as to the s 11 presumption and instructed that in the event it was satisfied that the appellant was in possession of the “drugs”, his intention to sell or supply them to another was proved beyond reasonable doubt.

3 The appellant appealed against his conviction to the Court of Appeal of the Supreme Court of Western Australia (McLure P, Mazza and Mitchell JJA). The determination of the appeal was governed by s 30 of the Criminal Appeals Act 2004 (WA) (“the CAA”), which relevantly provides:

“(2) Unless under subsection (3) the Court of Appeal allows the appeal, it must dismiss the appeal.

(3) The Court of Appeal must allow the appeal if in its opinion —

• (a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported; or

• (b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

• (c) there was a miscarriage of justice.

(4) Despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.”

4 The provision closely mirrors the common form criminal appeal statute 4 but adopts a contemporary style of drafting, which separates its component parts. The qualifier “actually” is omitted from the requirement that no substantial miscarriage of justice has occurred in sub-s (4) (“the proviso”). The omission is not suggested to be material to the appellant's argument.

5 The State conceded that the direction concerning proof of intention was wrong. It submitted that the appeal should nonetheless be dismissed under s 30(4), contending that, in light of the conduct of the trial, the error did not occasion a substantial miscarriage of justice.

6 In their joint reasons, Mazza and Mitchell JJA considered the application of the proviso by reference to whether the error was of “process” or “outcome”: errors of the first kind not being susceptible to its engagement 5. Their Honours rejected that the misdirection was an error of process 6. This conclusion took into account the observations of the plurality in Krakouer7. Their Honours moved to a consideration of the “outcome” aspect of the proviso. They concluded that, in light of the appellant's proven possession of nearly 5 kg of

“methylamphetamine”, his conviction for the offence of attempted possession with the intention of selling or supplying the drug to another was inevitable 8. McLure P, in separate reasons, also concluded that the jury's finding that the appellant had attempted to possess such a large quantity of high purity drug made his conviction for the offence with which he was charged inevitable 9. The appeal was dismissed.

7 On 12 May 2017, Gageler, Nettle and Edelman JJ gave the appellant special leave to appeal on the sole ground that the Court of Appeal erred in finding that there was no substantial miscarriage of justice and in dismissing his appeal.

Weiss v The Queen

8 Before turning to the evidence and the course of the trial, it is convenient to deal with one aspect of the appellant's challenge which is directed to the application of Weiss v The Queen10. The appellant contends that a vice in the approach taken in the joint reasons is that Mazza and Mitchell JJA confined their analysis of errors of “process” to “fundamental” errors “go[ing] to the root of the proceedings” 11 and, having determined that the misdirection was not an error of that kind, dismissed the appeal on satisfaction that guilt was proved beyond reasonable doubt without further examination of the nature and possible effect of the error. The appellant submits that either the approach misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled. He argues that Weiss has left uncertain the principles that engage the proviso and that the uncertainty has not been resolved in more recent decisions of the Court 12. The high point of the submission is the invitation to return to a test

for the determination of a substantial miscarriage of justice which asks whether the accused has lost a chance of acquittal fairly open 13 or whether there has been some substantial departure from a trial according to law 14.

9 Weiss is a unanimous decision and the appellant's careful argument does not provide a principled reason to depart from it 15. In light of the argument, it is as well to recall the notorious difficulties associated with the “lost chance of acquittal” 16 formulation when applied as the criterion of a substantial miscarriage of justice 17. Chief among these was the question of how the appellate court is to assess the lost chance. Courts were divided between the view that it was to be assessed from the standpoint of the jury at the trial (“this jury”) 18 and the view that it was to be assessed from the standpoint of the reasonable jury, properly instructed, and acting on admissible evidence (the “reasonable jury”) 19.

Assessment by reference to “this jury” was thought to give work to the proviso in a case in which the appeal succeeded under the third limb of the common form provision (that on any ground there was a miscarriage of justice (here s 30(3)(c))) 20, whereas assessment by reference to the “reasonable jury” was thought not to 21.

10 In England the debate was ultimately resolved in favour of assessment from the standpoint of the “reasonable jury” 22. As Professor Pattenden has observed, it was probably the only realistic approach to take given that the appellate court has no way of knowing what the particular jury might have thought had the trial been conducted properly 23, whereas the “reasonable jury” test turned on the appellate court's own assessment of the facts 24. As the Donovan Committee explained, the application of the “reasonable jury” test in practice had involved the appellate court coming to a conclusion of fact: whether the evidence established guilt beyond reasonable doubt 25.

11 The two approaches remained alive in the Australian jurisdictions and the difference in their application was the issue starkly raised in Weiss. It will be recalled that the Victorian Court of Appeal dismissed Weiss' appeal applying the “this jury” test while stating that the appeal would have been allowed had the test been the inevitability of conviction assessed from the standpoint of the “reasonable jury” 26. The conclusion highlighted a perceived difficulty in determining, at least in the case of wrongly admitted evidence, that conviction by a hypothetical jury can ever be said to be “inevitable”.

12 Weiss settled the debate in an analysis...