Kaja v The State of Western Australia [No 2]
[2024] WASCA 81
•4 JULY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAJA -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2024] WASCA 81
CORAM: VANDONGEN JA
HEARD: 21 MAY 2024 & 1 JULY 2024
DELIVERED : Ex tempore
PUBLISHED : 4 JULY 2024
FILE NO/S: CACR 119 of 2023
BETWEEN: ABDULLA KAJA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Application for bail pending appeal against conviction
Legislation:
Bail Act 1982 (WA), sch 1 pt C, cl 1, cl 3, cl 4A
Criminal Code (WA), s 7(b), s 7(c), s 563B(1)
Misuse of Drugs Act 1981 (WA), s 6(1)(c), s 34(1)(a)
Result:
Application granted
Category: B
Representation:
Counsel:
| Appellant | : | D Grace KC, C Porter & K J Louden (21 May 2024) K Espiner (1 July 2024) |
| Respondent | : | R F Owen SC & G N Beggs (21 May 2024) J C Whalley SC (1 July 2024) |
Solicitors:
| Appellant | : | Karrie Louden Barristers & Solicitors (21 May 2024) Hugo Law Group (1 July 2024) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Fermanis v The State of Western Australia [2005] WASCA 212
Scafetta v The State of Western Australia [2010] WASCA 209
Serukai v The State of Western Australia [2020] WASCA 127
Swift v The State of Western Australia [2023] WASCA 176
Taylor v The State of Western Australia [2016] WASCA 210
The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483
Ward v The Queen (1997) 19 WAR 68; (1997) 97 A Crim R 184
VANDONGEN JA:
The appellant applies for bail pending the hearing and determination of his appeal against judgments of conviction entered against him in the District Court of one count of dealing with property used in connection with an offence, contrary to s 563B(1) of the Criminal Code (WA) (Code) (count 1), and one count of selling or supplying a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) of the Misuse of Drugs Act 1981 (WA) (count 4).
The appellant initially sought to rely on one ground of appeal in support of his application for bail. However, after the first hearing of his application for bail, the appellant sought to rely on a second ground of appeal, which is in the following terms:
Ground 2
The Learned Trial Judge erred in her directions of law to the jury in relation to the liability of the Appellant as an aider or enabler, thereby giving rise to a substantial miscarriage of justice (Section 30(3)(6) Criminal Appeals Act, 2004 WA).
PARTICULARS
1.By directing the jury that they were to consider whether [the appellant] had actual knowledge by considering whether:
(a) he had an awareness or a belief in the likelihood in the sense that there was a significant or real chance that [the appellant's co‑offender] had money in his possession, and that he was going to deliver that money to be used or intended to be used in connection with a drug offence (Count 1); and /or
(b)he had an awareness or a belief in the likelihood in the sense that there was a significant or real chance that [the appellant's co‑offender] was selling or supplying a prohibited drug to another by the delivery of a quantity of a prohibited drug to a location (Count 4).
The State accepts that this ground is strongly arguable. On that basis, the State concedes that the appellant should be granted bail pending the hearing and determination of his appeal.
Relevant principles
The relevant principles to be applied in the context of an application for bail pending an appeal to this court are well established. In deciding whether or not to grant bail to an appellant who is in custody awaiting the disposal of appeal proceedings, bail may only be granted if the court is satisfied that exceptional circumstances exist and that it is proper to do so having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act 1982 (WA).[1] Although the test to be applied has been expressed in different ways, the essential question is whether the appellant has demonstrated a strongly arguable case on appeal, giving rise to real concern that the appellant would suffer injustice by having been kept in custody on the basis of an unsound conviction.[2]
[1] Pursuant to cl 4A of pt C sch 1 of the Bail Act 1982 (WA).
[2] Serukai v The State of Western Australia [2020] WASCA 127 [12] ‑ [15].
This court has said that on bail applications, the opportunity to conduct a comprehensive consideration of the materials is relatively limited and any assessment of the grounds can only be preliminary.[3] Accordingly, if it is suggested that the grounds have strong prospects of success, that will generally need to be readily apparent without the benefit of detailed argument or analysis.[4]
[3] Swift v The State of Western Australia [2023] WASCA 176 [8] (Hall JA).
[4] Fermanis v The State of Western Australia [2005] WASCA 212.
Are there strong prospects of the appeal succeeding?
The appellant was charged on indictment together with several other accused persons. However, only two of the offences charged in the indictment concern the appellant. Count 1 alleged that the appellant dealt with money used in connection with an offence, contrary to s 563B(1) of the Code. Count 4 alleged that the appellant sold or supplied a prohibited drug, contrary to s 6(1)(c) of the Misuse of Drugs Act.
Count 1 involved the possession and delivery of about $110,050 in cash by the appellant's alleged co‑offender, a man called Averildo Pulaj, to two truck drivers who had travelled from Adelaide to Perth. Count 4 related to 6.1684 kilograms of methylamphetamine that the truck drivers had brought with them from Adelaide, which Mr Pulaj took possession of in exchange for the cash, and then delivered to an address in Padbury.
The State case at trial was that Mr Pulaj was the principal offender of the offences in counts 1 and 4, and that the appellant was criminally liable pursuant to s 7(b) or s 7(c) of the Code. The State's case against the appellant in respect of count 1 was that he aided Mr Pulaj by packaging up the cash for Mr Pulaj to deliver and further, or in the alternative, by ensuring the safe delivery of the cash to the truck drivers. In relation to count 4, the State's case against the appellant was that he aided Mr Pulaj's supply of the methylamphetamine by acting as a backup or as security to ensure the safe delivery of the drugs to the address in Padbury so that it was made available to some other person.
By ground 2, the appellant complains about the trial judge's directions in relation to what the State was required to prove about the appellant's knowledge to find him guilty as an aider or enabler of Mr Pulaj's offending behaviour.
Based on what was said in Scafetta v The State of Western Australia[5] and in Taylor v The State of Western Australia,[6] before the appellant could be found guilty of either of the offences with which he was charged on the basis that he aided or enabled Mr Pulaj, the State was required to prove beyond reasonable doubt that the appellant had actual knowledge of the facts amounting to those offences.[7] This is exactly what the trial judge initially told the jury in relation to both counts. However, when she further explained how the State proved that he had 'actual knowledge', her Honour said the following in relation to count 1:
When you are considering [the appellant's] knowledge at this time, you are to consider whether [the appellant] had an awareness or a belief in a likelihood in a sense that there was a real, significant chance that Mr Pulaj had money in his possession, and that he was going to deliver that money that was being used or was intended to be used in connection with a drug offence. (emphasis added)
[5] Scafetta v The State of Western Australia [2010] WASCA 209 [12].
[6] Taylor v The State of Western Australia [2016] WASCA 210 [58] - [59].
[7] See also, Ward v The Queen (1997) 19 WAR 68; (1997) 97 A Crim R 184.
Similarly, in respect of count 4, she said:
Well, when you are considering [the appellant's] knowledge at this time, you are to consider whether [the appellant] had an awareness or a belief in the likelihood in the sense that there was a significant or real chance that Mr Pulaj was selling or supplying to another by delivering a quantity of a prohibited drug to a location. (emphasis added)
My opinion about the prospect that any ground of appeal will be successful can only be preliminary in nature at this stage. The respondent has not yet filed a respondent's answer, and in the absence of having heard detailed oral submissions, it is appropriate to deal with the merits of the application for bail in a conclusionary way.
In the two directions to which I have referred, the trial judge appears to have erroneously conflated the degree of knowledge required to prove that a person had possession of a prohibited drug for the purposes of an offence proscribed by the Misuse of Drugs Act, as explained in The State of Western Australia v R,[8] with the degree of knowledge required to prove that a person is criminally liable under either s 7(b) or s 7(c) of the Code, which was authoritatively referred to in Scafetta and in Taylor. On a preliminary assessment, if the appellant had an awareness or a belief in the likelihood (in the sense that there was a significant or real chance) that Mr Pulaj had money in his possession, or that Mr Pulaj was delivering prohibited drugs to another, it would not necessarily follow that the appellant had actual knowledge of either of those facts.
[8] The State of Western Australia v R [2007] WASCA 42; (2007) 33 WAR 483.
On that basis, I accept the State's concession that ground 2 is strongly arguable. I am satisfied that there are exceptional circumstances justifying a grant of bail pending the hearing and determination of the appeal against conviction.
Should bail be granted to the appellant?
I have had regard to all the questions referred to in cl 1 of pt C sch 1 of the Bail Act. Further, in considering whether the appellant may do any of the things mentioned in cl 1(a), I have had regard to the matters in cl 3.
I have also taken account of the fact that the appellant was on bail throughout his trial. I have also taken into account the fact that it is not suggested that it would not be proper for me to grant bail, having regard to the provisions of cl 1 and cl 3 of pt C sch 1 of the Bail Act. The parties have, in fact, filed a joint draft minute of proposed conditions of bail.
In my view it is appropriate to grant bail.
I am informed that it is highly likely that the appellant will be transferred to immigration detention upon being granted bail. However, I understand that the State has begun to take the necessary steps to arrange for a Criminal Justice Stay Certificate to be issued so that the appellant can be released on bail pending the determination of the appeal.
I do not think that the appellant's immigration status is a reason not to grant bail, and the State does not suggest otherwise.
I will hear the parties further as to the precise conditions on which bail should be granted to the appellant pending the hearing and determination of his appeal against conviction in CACR 119 of 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LB
Research Associate to the Honourable Justice Vandongen
4 JULY 2024
0
6
3