Kaja v The State of Western Australia [No 3]
[2025] WASCA 95
•23 JUNE 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KAJA -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2025] WASCA 95
CORAM: BUSS P
MAZZA JA
HALL JA
HEARD: 9 DECEMBER 2024
SUPPLEMENTARY WRITTEN SUBMISSIONS FILED 21 & 24 FEBRUARY 2025
DELIVERED : 23 JUNE 2025
FILE NO/S: CACR 119 of 2023
BETWEEN: ABDULLA KAJA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 254 of 2021
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of one count of dealing with money in connection with an offence and one count of selling or supplying methylamphetamine to another - Where appellant allegedly an enabler or aider within meaning of s 7(b) or s 7(c) of the Criminal Code (WA) - Whether trial judge erred in directing that 'actual knowledge' means an awareness or belief in the likelihood in the sense that there was a significant or real chance - Meaning of actual knowledge for enabler or aider liability
Legislation:
Criminal Code (WA), s 7(a), s 7(b), s 7(c), s 563B
Misuse of Drugs Act 1981 (WA), s 3(1), s 4, s 6(1)(a), s 6(1)(c), s 32A(1)(b)(i), s 34(1)(a)
Result:
Leave to appeal on ground 1 refused
Leave to appeal on ground 2 granted
Appeal allowed
Judgments of conviction set aside
Drug trafficker declaration set aside
New trial ordered
Category: A
Representation:
Counsel:
| Appellant | : | C C Porter & K Espiner |
| Respondent | : | G N Beggs |
Solicitors:
| Appellant | : | Hugo Law Group |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
La Bianca v The State of Western Australia [2019] WASCA 105
Nuhana v The State of Western Australia [2018] WASCA 79
Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1
Ritchie v The State of Western Australia [2016] WASCA 134; (2016) 260 A Crim R 367
Scafetta v The State of Western Australia [2010] WASCA 209
Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176
Taylor v The State of Western Australia [2016] WASCA 210
Ward v The Queen (1997) 19 WAR 68
JUDGMENT OF THE COURT:
The appellant has appealed against conviction.
The appellant was charged with numerous co‑accused on a joint indictment containing six counts. Counts 1 and 4 related to the appellant and one of his co‑accused, Averildo Pulaj.
Count 1 alleged that on 25 May 2020, at Cannington, Mr Pulaj and the appellant dealt with money that was being used or was intended to be used in connection with an offence, namely possession of a prohibited drug with intent to sell or supply it to another, contrary to s 563B(1) of the Criminal Code (WA) (the Code).
Count 4 alleged that on 25 May 2020, at Padbury, Mr Pulaj and the appellant sold or supplied a prohibited drug, namely methylamphetamine, to others and that the offence involved a trafficable quantity of methylamphetamine, contrary to s 6(1)(c) read with s 34(1)(a) of the Misuse of Drugs Act 1981 (WA) (the MD Act).
The amount of money the subject of count 1 was $110,150 cash. The quantity of methylamphetamine the subject of count 4 was about 6.1 kg. The cash was a payment towards the purchase of the methylamphetamine.
The State's case was that Mr Pulaj was criminally responsible for counts 1 and 4 as the principal offender pursuant to s 7(a) of the Code. The State's case was that the appellant was criminally responsible for counts 1 and 4 as an enabler or aider pursuant to s 7(b) of the Code or, alternatively, as an aider pursuant to s 7(c) of the Code.
On 23 February 2023, after a trial before Barbagallo DCJ and a jury, Mr Pulaj and the appellant were convicted of counts 1 and 4.
On 22 September 2023, the trial judge sentenced the appellant to a total effective sentence of 10 years' imprisonment. The sentence was backdated to 23 February 2023 to take account of time the appellant had spent in custody in relation to the offending. Her Honour made a parole eligibility order and a drug trafficker declaration.
On 12 October 2023, the appellant filed his appeal notice. On 12 June 2024, he filed an amended appellant's case. On 1 July 2024, the appellant was granted bail pending the determination of his appeal.
The appellant relies upon two grounds of appeal.
Ground 1 alleges, in essence, that a miscarriage of justice occurred at the trial because the appellant's leading defence counsel suffered a severe episode of mental illness during the trial and consequently was unable competently to represent the appellant.
Ground 2 alleges, in essence, that the trial judge misdirected the jury in relation to what the State had to prove beyond reasonable doubt to establish that the appellant was criminally responsible as an enabler or aider, pursuant to s 7(b) or s 7(c) of the Code, in relation to the offences charged in counts 1 and 4.
Particulars of ground 2 assert, in essence, that her Honour misdirected the jury by directing the jury that they were to consider whether the appellant had actual knowledge of the facts amounting to the offences committed by Mr Pulaj, by considering whether the appellant had an awareness or a belief in the likelihood, in the sense that there was a significant or real chance, that:
(a)as to count 1, Mr Pulaj had money in his possession and that Mr Pulaj was going to deliver that money to be used or intended to be used in connection with a drug offence; and
(b)as to count 4, Mr Pulaj was selling or supplying a prohibited drug to another by delivering a quantity of a prohibited drug to a location.
On 5 November 2024, Buss P ordered that ground 2 be heard and determined separately from and before ground 1.
The State has conceded that ground 2 has been made out and that the appeal should be allowed. The concession was properly made.
We would grant leave to appeal on ground 2 and allow the appeal on the basis of that ground. The judgments of conviction on counts 1 and 4 and the drug trafficker declaration should be set aside. The appellant should be retried on counts 1 and 4. It is unnecessary to determine ground 1 because, even if ground 1 was established, no different relief would be granted. Leave to appeal on ground 1 should be refused.
Our reasons for allowing the appeal, setting aside the convictions and the drug trafficker declaration, and ordering a new trial are as follows.
Section 7 of the Code
The parties to an offence are specified in s 7, s 8, s 9 and s 10 of the Code.
Section 7 lists four categories of parties to an offence. A person who is within one or other of the categories is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it.
Section 7 provides, relevantly:
7.Principal offenders
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(a)Every person who actually does the act or makes the omission which constitutes the offence;
(b)Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c)Every person who aids another person in committing the offence;
(d)Any person who counsels or procures any other person to commit the offence.
Section 7(b) operates to make a person criminally liable if he or she does any act or makes any omission for the purpose of enabling or aiding another person to commit the offence.
Similarly, s 7(c) makes a person criminally liable if the person aids another person in committing the offence.
Overview of the State's case against Mr Pulaj and the appellant
As to count 1, the State alleged that:
(a)Mr Pulaj delivered the $110,150 cash to another co‑accused, James Scott, at the Platinum Motel in Cannington, knowing that it was a payment towards the purchase of the methylamphetamine; and
(b)the appellant enabled or aided Mr Pulaj in dealing with the $110,150 cash, either by packaging the cash in an empty chip packet and giving it to Mr Pulaj or by following Mr Pulaj in a separate motor vehicle but in convoy to the Platinum Motel, where the cash was exchanged for the methylamphetamine, to provide back‑up or security for the safe delivery of the cash.
As to count 4, the State alleged that:
(a)after taking delivery of the methylamphetamine at the Platinum Motel, Mr Pulaj supplied the methylamphetamine to other co‑accused by delivering it to residential premises in Padbury; and
(b)the appellant enabled or aided Mr Pulaj in supplying the methylamphetamine by following Mr Pulaj from the Platinum Motel in a separate motor vehicle but in convoy to the residential premises to provide back‑up or security for the safe delivery of the drug.
Overview of Mr Pulaj's defence at the trial
Mr Pulaj gave evidence at the trial. Mr Pulaj said that he had been asked by a friend, Alex, to hold some cash for him pending instructions on when and where to deliver it. He claimed to have been assured by Alex that the cash related to the sale of cigarettes and tobacco. Mr Pulaj said that on 24 May 2020 he asked the appellant to store the cash in a room at the Westin Hotel where the appellant was staying. The appellant agreed to store the cash in a safe in his hotel room. According to Mr Pulaj, on 25 May 2020 he was told to take the cash to a room at the Platinum Motel and give the cash to a man who was occupying the room. Mr Pulaj said he was told there might be something in the room for him to collect. Mr Pulaj denied that there was any arrangement with the appellant for the appellant to provide security while the cash was being taken to the Platinum Motel to be exchanged for the methylamphetamine. He admitted that he delivered the cash to a man (Mr Scott) in the room at the Platinum Motel and that the man (Mr Scott) gave him a black duffel bag. Mr Pulaj denied knowing that the bag contained the methylamphetamine. He assumed the bag contained cigarettes or tobacco. Mr Pulaj said he did not know that the bag he delivered to the residential premises in Padbury contained methylamphetamine.
Overview of the appellant's defence at the trial
The appellant did not give evidence at the trial nor adduce any evidence.
The appellant contended through defence counsel that if the jury were not satisfied beyond reasonable doubt that Mr Pulaj committed either count 1 or count 4 then the appellant could not be found guilty of enabling or aiding Mr Pulaj.
The appellant also contended through defence counsel that:
(a)the appellant did not know that Mr Pulaj was committing an offence by delivering the cash to Mr Scott;
(b)the appellant did not know that Mr Pulaj was delivering a prohibited drug to the residential premises in Padbury;
(c)even if Mr Pulaj was committing an offence or offences, the appellant did not do anything to assist Mr Pulaj in committing the offence or offences; and
(d)even if the appellant did do something which assisted Mr Pulaj in committing the offence or offences, the appellant did not intend to assist him in committing the offence or offences.
Section 563B of the Code
Section 563B(1) provides that '[a] person who deals with any money or other property that is being used, or is intended to be used, in connection with an offence is guilty of a crime and is liable to imprisonment for 20 years'.
Section 563B(3)(a) provides that it is a defence in proceedings for a crime under s 563B(1):
(a)to prove that the accused -
(i)did not know; and
(ii)did not believe or suspect; and
(iii)did not have reasonable grounds to believe or suspect,
that the money or other property was being used or was intended to be used in connection with the offence[.]
Section 563B(5) provides that in s 563B:
deals with, in relation to money or other property, means -
(a)receives or has possession or control of the money or other property; or
(b)conceals or attempts to conceal the money or other property; or
(c)passes the money or other property to another person; or
(d)disposes of the money or other property in any other way;
offence means an offence against a law of Western Australia, the Commonwealth, another State or a Territory;
used in connection with an offence means used in or in connection with -
(a)the commission of an offence; or
(b)facilitating or procuring an offence.
Section 6(1)(c) of the MD Act
Section 6(1)(c) of the MD Act provides that a person commits a crime if the person 'sells or supplies, or offers to sell or supply, a prohibited drug to another person'.
Section 3(1) of the MD Act provides that, in that Act, unless the contrary intention appears:
to supply includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied[.]
The term 'prohibited drug' is defined in s 3(1) of the MD Act to mean a drug to which the Act applies by virtue of s 4.
Methylamphetamine is a prohibited drug.
The trial judge's relevant directions in relation to Mr Pulaj
The trial judge directed the jury in relation to the State's case against Mr Pulaj on count 1, relevantly, as follows (ts 1804 ‑ 1805):
[I]f the State has proved beyond reasonable doubt that Mr Pulaj dealt with money that was being used or was intended to be used in connection with the nominated drug offence, the law effectively places on Mr Pulaj the onus of proving on the whole of the evidence including his evidence on the balance of probabilities that he did not know and did not believe or suspect and did not have reasonable grounds to believe or suspect that the money was being used or was intended to be used in connection with the drug offence nominated by the State.
…
The standard that must be met in order to prove any of these matters is on the balance of probabilities. …
It is for you the jury to decide whether Mr Pulaj has established the matters I have directed you about on the balance of probabilities. So in order for this defence to be made out, you must look at all the evidence including Mr Pulaj's evidence in determining on the balance of probabilities that he did not know and he did not believe or suspect and he did not have reasonable grounds to believe or suspect that the money was being used or was intended to be used in connection with the drug offence nominated by the State.
When you are considering Mr Pulaj's knowledge at this time, you are to consider whether Mr Pulaj had an awareness or a belief in a likelihood in a sense that there was a significant or real chance that the money he had in his possession and ultimately delivered was money from the drug offence nominated by the State. (emphasis added)
Her Honour directed the jury in relation to the State's case against Mr Pulaj on count 4, relevantly, as follows:
(a)the State had to prove beyond reasonable doubt that Mr Pulaj 'knew that there was a quantity of prohibited drug in the black duffel bag ‑ that is, [Mr Pulaj] … had an awareness or a belief in the likelihood, in the sense that there was a significant or real chance, that the material in the black duffel bag was a quantity of prohibited drugs' (ts 1847); and
(b)'[t]he State need only prove that [Mr Pulaj] knew that there was a quantity of prohibited drugs in the black duffel bag ‑ that is, he had an awareness or a belief in the likelihood, in the sense that there was a significant or real chance, that there was a quantity of prohibited drugs in that black duffel bag' (ts 1848).
The trial judge's relevant directions in relation to the appellant
The trial judge instructed the jury on count 1 that the jury would 'only get to consider the case against [the appellant on that count] if [the jury] are satisfied beyond reasonable doubt that Mr Pulaj has committed this offence in count 1' (ts 1808).
Her Honour directed the jury in relation to proof by the State of the appellant's knowledge for the purposes of count 1, relevantly, as follows (ts 1809 ‑ 1811):
[T]he State must prove beyond reasonable doubt … that [the appellant] had actual knowledge of the facts amounting to the offence committed by Mr Pulaj. So [the appellant] had to have actual knowledge of the facts amounting to the offence committed by Mr Pulaj.
The State does not need to prove that [the appellant] had actual knowledge of every detail of what Mr Pulaj was doing. But the State does need to prove that [the appellant] had actual knowledge that, firstly, Mr Pulaj had money in his possession. And secondly, that Mr Pulaj was to deliver that money that was being used or was intended to be used in connection with the nominated drug offence.
…
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.
You will recall that I gave you directions about how the State seeks to prove an accused man's knowledge. In summary, the State seeks to prove the accused man's knowledge by looking at a combination of pieces of evidence and from that evidence invites you to conclude that there is only one rational and reasonable inference open on all the evidence.
And that is that [the appellant] had actual knowledge that Mr Pulaj had money in his possession and that Mr Pulaj was going to deliver that money that was being used or was intended to be used in connection with the nominated drug offence.
If you are not satisfied beyond reasonable doubt that [the appellant] had actual knowledge that Mr Pulaj had money in his possession and that Mr Pulaj was going to deliver that money that was being used or was intended to be used in connection with a drug offence, then the State has failed to prove an element of this count and the verdict against [the appellant] in respect of count 1 is not guilty.
If you are satisfied beyond reasonable doubt that [the appellant] had actual knowledge that Mr Pulaj had money in his possession and Mr Pulaj was to deliver that money that was being used or was intended to be used in connection with that drug offence, then the State has proved this element of this count 1 and you are then to go on to consider the next element. (emphasis added)
The trial judge instructed the jury on count 4 that the jury would 'only get to consider the case against [the appellant on that count] if [the jury] are satisfied beyond reasonable doubt that Mr Pulaj has committed this offence in count 4' (ts 1853).
Her Honour directed the jury in relation to proof by the State of the appellant's knowledge for the purposes of count 4, relevantly, as follows (ts 1854 ‑ 1855):
[T]he State must prove beyond reasonable doubt … that [the appellant] had actual knowledge of the facts amounting to the offence committed by Mr Pulaj. So [the appellant] had to have actual knowledge of the facts amounting to the offence committed by Mr Pulaj.
The State does not need to prove that [the appellant] had actual knowledge of every detail of what Mr Pulaj was doing, but the State does need to prove that [the appellant] had actual knowledge firstly, that Mr Pulaj was selling or supply[ing] to another by delivering a quantity of a prohibited drug to a location. And that the quantity of the prohibited drug was significant, more than 28 grams.
…
So how does the State prove that [the appellant] had actual knowledge firstly, that Mr Pulaj was selling or supplying to another by delivering a quantity of prohibited drug to a location? And that the quantity of the prohibited drug was more than 28 grams?
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.
And that the quantity of the prohibited drug was significant. You will recall I gave you directions about how the State seeks to prove an accused man's knowledge and I don't propose to say much other than to say this. The State in this case seeks to prove the accused man's knowledge, that is [the appellant's], by looking at a combination of pieces of evidence.
And from that evidence, invites you to conclude that there is only one rational and reasonable inference open on all the evidence and that is that [the appellant] had actual knowledge of both those things. That is that Mr Pulaj was selling or supplying to another by delivering a quantity of prohibited drug to a location.
And that the quantity of the prohibited drug exceeded 28 grams. If you are not satisfied beyond reasonable doubt that [the appellant] had actual knowledge of those two matters, then the State has failed to prove an element of this count 4 and the verdict against [the appellant] must be one of not guilty.
If you are satisfied that [the appellant] had actual knowledge of those two matters that I've identified, then the State has proved the element of this count 4 and then you go on to consider the next element … (emphasis added)
The merits of ground 2
In Sgarlata v The State of Western Australia,[1] Buss JA made these observations (Mazza JA agreeing) about what the State must prove beyond reasonable doubt where an accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act:
Where an accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, and putting to one side for the moment the issue of the knowledge of the accused, the State must prove beyond reasonable doubt that:
(a)the accused had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing;
(b)at least where the substance or thing was not in the accused's immediate physical custody, an intention by the accused 'to control' or 'have dominion over' the substance or thing within the extended definition of 'to possess' in s 3(1) of the MD Act;
(c)the substance or thing was, in fact, a 'prohibited drug' as defined in s 3(1) read with s 4 of the MD Act (that is, subject to the exclusion in s 4(4) of the MD Act, a 'drug of addiction' as defined by s 5 of the Poisons Act or a 'specified drug' as defined by s 5 of the Poisons Act or a drug specified in sch I of the MD Act); and
(d)(unless the presumption in s 11(a) of the MD Act applies), the accused intended to sell or supply to another at least some of the substance or thing.
Subject to the issue of the accused's knowledge, those are the elements of the offence.
[1] Sgarlata v The State of Western Australia [2015] WASCA 215; (2015) 49 WAR 176 [179].
Buss JA then stated in Sgarlata [180] that his Honour would set out 'a number of propositions [that] are discernible from the Western Australian case law in relation to proof by the State of the knowledge of an accused where the accused is charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act'.
The propositions that Buss JA set out in Sgarlata [181] ‑ [184] (with which Mazza JA agreed) were as follows:
First, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that he or she had in his or her physical possession, or otherwise in his or her control or under his or her dominion, a substance or thing.
Secondly, the State must prove that the accused had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was 'a prohibited drug'.
Thirdly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was the specific drug the subject of the charge.
Fourthly, it is unnecessary for the accused to have had at least an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the weight or quantity of the substance or thing was as alleged in the charge.
Sgarlata was decided before Parliament amended the MD Act by increasing the maximum penalty for a crime under s 6(1) of the MD Act that involves a 'trafficable quantity of methylamphetamine' (as defined in s 34(1A) of the MD Act) from 25 years' imprisonment or a fine not exceeding $100,000 or both to life imprisonment.
In Sgarlata [192], Buss JA held (Mazza JA agreeing) that where an accused has been charged, as a principal offender, with possession of a prohibited drug, with intent to sell or supply it to another, contrary to s 6(1)(a) of the MD Act, the State is merely required to prove beyond reasonable doubt, as an element of the offence, at least an awareness or belief by the accused in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was, in fact, a 'drug', within the ordinary and natural meaning of that term.
In Sgarlata [194] ‑ [198], Buss JA also held (Mazza JA agreeing) that the defence of an honest and reasonable, but mistaken, belief in a state of things, for the purposes of s 24 of the Code, had not been excluded by the express or implied provisions of the MD Act. Accordingly, if in a particular case there is evidence, fit for the tribunal of fact's consideration, of an honest and reasonable, but mistaken, belief in the existence of a state of things in relation to the substance or thing in question, within s 24 of the Code, the burden of negativing the defence beyond reasonable doubt will rest upon the State [198].
Later in Sgarlata [199] ‑ [204], Buss JA made a number of observations (with which Mazza JA agreed) about the offence of supplying a prohibited drug to another person, contrary to s 6(1)(c) of the MD Act. On the issue of knowledge, Buss JA said in the context of an accused being charged, as a principal offender, with supplying a prohibited drug to another [203] ‑ [204]:
In my opinion, for the following reasons, the notion of 'supply' also connotes knowledge by the alleged supplier of the substance or thing supplied. First, as I have mentioned, the ordinary and natural meaning of 'to supply', in the context of the supply of illegal drugs and the extended definition of 'to supply' in s 3(1) of the MD Act, connotes to provide or make available drugs to another person who wants or requires them; that is, to supply the substance or thing in question to another person who wants or requires drugs. Secondly, as I have mentioned, the majority in Pinkstone held, relevantly, that, by virtue of the extended definition of 'to supply' in s 3(1) of the MD Act, a person will have supplied a prohibited drug to another, contrary to s 6(1)(c) of that Act, once he or she has knowingly placed the drug in a mail delivery system with the intention that it be received by the other person at a particular place, whether the drug ultimately reaches the intended recipient or not. (original emphasis)
The better view is that, based on the notion of 'supply' connoting knowledge by the alleged supplier of the substance or thing supplied and the reasons of the majority in Pinkstone, and otherwise by parity of reasoning with the decision of the majority in R and decisions to similar effect in other cases in this State, as I have explained them, where an accused has been charged with a supply offence, contrary to s 6(1)(c) of the MD Act, the State must prove at least an awareness or belief by the accused (when the offending allegedly occurred) in the likelihood (in the sense that there was a significant or real chance) that the substance or thing in question was 'a drug', within the ordinary and natural meaning of that term. (emphasis added)
So, criminal responsibility under s 7(a) of the Code for the offence of selling or supplying a prohibited drug to another person, contrary to s 6(1)(c) of the MD Act (the offence), requires proof by the State of the elements of the offence, including that:
(a)the accused had at least an awareness of or a belief in the likelihood (in the sense that there was a significant or real chance) that he or she was selling or supplying a substance or thing;
(b)the accused had at least an awareness of or a belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term; and
(c)the substance or thing was, in fact, a 'prohibited drug', as defined in s 3(1) of the MD Act.
See (in addition to Sgarlata) La Bianca v The State of Western Australia.[2]
[2] La Bianca v The State of Western Australia [2019] WASCA 105 [28] (Buss P & Mazza JA), [165] (Mitchell JA).
However, in order to establish that an accused enabled or aided, for the purposes of s 7(b) or s 7(c) of the Code, the accused must have actual knowledge of the facts amounting to the offence in question, as distinct from merely having a suspicion that those facts exist. See Ward v The Queen.[3]
[3] Ward v The Queen (1997) 19 WAR 68, 75 ‑ 76 (Steytler J; Kennedy & Franklyn JJ agreeing).
Criminal responsibility under s 7(b) or s 7(c) of the Code for the offence of selling or supplying a prohibited drug to another person, contrary to s 6(1)(c) of the MD Act (the offence), requires proof by the State of the elements of the offence, including that:
(a)a person or persons (the principal) has or have committed the offence;
(b)the 'enabler' or 'aider' had actual knowledge of the facts amounting to the offence committed by the principal;
(c)the 'enabler' or 'aider' did or omitted to do something with the intention of enabling, aiding or assisting in the doing of the acts which make up the offence; and
(d)what the 'enabler' or 'aider' did or omitted to do actually enabled, aided or assisted the commission of the offence.
See Scafetta v The State of Western Australia;[4] Nuhana v The State of Western Australia;[5] La Bianca [29], [166]. See also Ritchie v The State of Western Australia;[6] Taylor v The State of Western Australia.[7]
[4] Scafetta v The State of Western Australia [2010] WASCA 209 [12] (McLure P; Buss JA generally agreeing & Mazza J agreeing).
[5] Nuhana v The State of Western Australia [2018] WASCA 79 [72] (Mazza, Mitchell & Beech JJA).
[6] Ritchie v The State of Western Australia [2016] WASCA 134; (2016) 260 A Crim R 367 [84] (McLure P; Buss & Mazza JJA relevantly agreeing).
[7] Taylor v The State of Western Australia [2016] WASCA 210 [58] (Buss P), [310] (Mazza JA).
It is not sufficient to establish criminal responsibility under s 7(b) or s 7(c) of the Code in relation to the element of knowledge that, relevantly:
(a)the accused merely had an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the principal offender intended to sell or supply or was selling or supplying a substance or thing;
(b)the accused merely had an awareness or belief in the likelihood (in the sense that there was a significant or real chance) that the substance or thing which the principal offender intended to sell or supply or was selling or supplying was, in fact, 'a drug' within the ordinary and natural meaning of that term; and
(c)the substance or thing was, in fact, a 'prohibited drug', as defined in s 3(1) of the MD Act.
It is necessary to establish criminal responsibility under s 7(b) or s 7(c) of the Code in relation to the element of knowledge that, relevantly:
(a)the accused had actual knowledge (when the offending allegedly occurred) that the principal offender intended to sell or supply or was selling or supplying a substance or thing;
(b)the accused had actual knowledge (when the offending allegedly occurred) that the substance or thing was, in fact, 'a drug' within the ordinary and natural meaning of that term; and
(c)the substance or thing was, in fact, a 'prohibited drug', as defined in s 3(1) of the MD Act.
Something less than knowledge may never be treated as satisfying a requirement of actual knowledge for the purposes of s 7(b) or s 7(c) of the Code. Actual knowledge may be inferred from the circumstances surrounding the commission of the alleged offence, but knowledge must be the only rational inference available. See Pereira v Director of Public Prosecutions;[8] Ward (75 ‑ 76).
[8] Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1, 3 (Mason CJ, Deane, Dawson, Toohey & Gaudron JJ).
In the present case, we are of the opinion that the trial judge misdirected the jury by directing the jury (in relation to the appellant's alleged criminal responsibility as an enabler or aider pursuant to s 7(b) or s 7(c) of the Code) that the jury were to consider whether the appellant had actual knowledge by reference to whether the appellant had an awareness or belief in the likelihood, in the sense that there was a significant or real chance, that:
(a)Mr Pulaj had money in his possession, and that Mr Pulaj was going to deliver that money to be used or intended to be used in connection with a drug offence (count 1); and
(b)Mr Pulaj was selling or supplying a prohibited drug to another by delivering a quantity of a prohibited drug to a location (count 4).
Ground 2 has been made out.
Conclusion
Leave to appeal should be refused on ground 1 and granted on ground 2. The appeal must be allowed and the judgments of conviction on counts 1 and 4 set aside. A new trial of the appellant on counts 1 and 4 must be had.
The drug trafficker declaration in respect of the appellant made by her Honour pursuant to s 32A(1)(b)(i) of the MD Act was predicated on the judgment of conviction entered by her Honour on count 4. It follows that the drug trafficker declaration must also be set aside.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
23 JUNE 2025
0
8
2