Kalbasi v The State of Western Australia

[2017] HCATrans 224

[2017] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 2017

B e t w e e n -

POUYAN KALBASI

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 NOVEMBER 2017, AT 10.15 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear with my learned friends, MR P McQUEEN and MS G.E.L. HUXLEY, for the appellant.  (instructed by Lavan)

MS A.L. FORRESTER, SC:   If it please your Honours, with MS K.C. COOK, I represent the State, the respondent.  (instructed by Director of Public Prosecutions (WA))

KIEFEL CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  You have our outline, should I wait for a minute while your Honours have a quick look at it?

KIEFEL CJ:   Yes, thank you, Mr Game.  Yes, Mr Game.

MR GAME:   Thank you, your Honour.  Could I take your Honours first to the statute and to a couple of provisions of the statute?  It is the Misuse of Drugs Act 1981, section 6. The offence is an offence of possession. The gravamen of the offence is – sorry, possession and of no particular quantity. The gravamen of the offence, we submit, is what might be described as the ulterior element or the fault element which is a mental – an extension of a state of mind attached to the physical element of possession but the intention being intent to sell or supply. There is an extended definition of supply in the definition section, section 3, but to engage that it would have to be pleaded.

Section 6(2) is a simple offence of possession and needless to say the penalties are markedly different. Now, section 10 provides for alternative verdict. Section 11 is the deeming provision, but because of the relationship between section 33 and section 6, section 11 does not apply as held in Krakouer to – section 11 does not apply to section 33, attempt, and this was an attempt because of the substitution.

But the deeming provision operates when there are more than two grounds and that is in Schedule 5.  Once the deeming provision is engaged, the question of intent to sell or supply is taken out of contention completely.  It is not as though you have to even address the question, so that the question becomes possession, shall I say qua possession, and the sell or supply is just taken to have been established.

If you then go to page 661 of the appeal book, you will see the jury aide.  Now, the way this trial was conducted, the only matter ‑ it was a misapprehension by everybody in this trial ‑ it was actually a misapprehension by everybody in the previous trial as well because this was a retrial.  So, the matter number 4 to be established, which says:

The accused intended to sell or supply the prohibited drug, or any part of it –

although that was not required to be proved, the “or any part of it” seems to suggest it could be quite a small part of it or implies that you could break it up or implies, in our submission, possession of less than the whole.

Now, if your Honours go back to page 632, you will see the error appears at 632, lines 40 to 50 and his Honour again uses the language:

sell or supply . . . any part of it –

It is, in our submission, worth noting that which appears at the top of page 633, because what has been ‑ but where it says:

You do not need to concern yourself with where the drugs might have gone, how they might have got there, when they might have been moved or whatever.

Because of the misapprehension in this case, the whole issue about supply is taken out of contention.  It is kind of taken out of the case and that would matter a lot if it was understood that the ulterior intent had to be established by the prosecution.

So, your Honours, if you go back then to – it is said against us that the position directions had the effect that we were necessarily guilty of intent.  But what we say about the position directions is that they are adequate if the question was only addressed to possession or if the presumption applied.  They are adequate, as it were, if you are directing on possession qua possession. 

But if one thought about it the directions would be quite different if you were actually wanting to get from possession to qua intent because the way the case would have to be pitched would be these people were cutting the drugs.  They were cutting the drugs to do something with them which was to sell them.  So you would actually get a different set of directions about possession if you were thinking about the fact that you had to prove the intention.

So when you come then to the directions at 627 – and they are put in a number of ways – this is the only part of the transcript I am going to draw out but I will just take your Honours to this – possibly I will mention a bit of defence counsel’s address.  At 627, line 30, the jury is told:

The issue in this trial is whether or not you are satisfied beyond reasonable doubt that Mr Kalbasi was in possession or possessed the intended drugs –

If I could just put it this way, the Crown was saying they were there doing something quite nefarious with the drugs but all we have to satisfy your Honours is that he was involved with drugs in some way.  That is the way this is being put.

So then the jury are given the - we have seen the jury aide and that definition of “possess” that you saw in the jury aide is actually just the words taken out of the definition section 3.  I would say also that this question of possession - it is said against us that, as it were, possession of the whole quantity was proved but these directions are not addressed explicitly to the whole quantity at all.  You could not draw any inference about what the jury concluded about the whole quantity.

BELL J:   Was not the issue being put in the directions with respect to whether the jury were satisfied to the criminal standard of the appellant’s control or dominion over something described as the intended drugs?  Was that not a reference to the whole?

MR GAME:   Not necessarily, your Honour, but if you look at the directions the jury might have been satisfied about the whole but it was an unnecessary part of their process of reasoning that they be so satisfied.  If one looks at these directions they would not pass muster if you were directing one’s mind to the question of intention because they satisfy possession, as I said at the beginning, qua possession but not qua intention to sell or supply.

EDELMAN J:   They are effectively directions on 6(2), are they not?

MR GAME:   Yes, your Honour, that is exactly what they are. So what we say is a case was established against us under section 6(2). I understand entirely your Honour Justice Bell’s point and I understand that that is something that I have to deal with, but what I am going to say I am kind of trying to address it successfully or not, but anyway. So if you go to line 42, it is said that there are three elements of possession and one is told – I tried to find out if these are standard directions but I could not, but anyway I do not know the answer to that question. But if you look at line 43, you see he needs to know that he was in possession of:

a prohibited drug of some kind.  The State does not need to prove that the accused knew precisely what type of drug it was or the quantity or the purity.

Well, that might be an appropriate direction for a courier bringing in drugs into Australia charged with possession under the Customs Act, but it would be a very odd thing indeed if they were busy cutting the drugs with MSM for the accused not to know what type of drug it was and yet this jury is told they do not need to be satisfied about it.  So, we say these directions are the reverse of what you need to actually get to the issue of possession qua intent, and there is more of it to come, your Honour.

BELL J:   But they may be directions that fairly reflect the issue at the trial.

MR GAME:   Well, there is an important point about that, your Honour, which is the issue at the trial was thought to only be an issue about possession.  No such misapprehension existed in Krakouer. The fact that the whole thing was misapprehended was that everybody in this trial thought they were conducting a trial about the issue that would actually be joined by section 6(2), not 6(1). You cannot wrench out of this necessary establishment of intent to supply because it is actually eschewed by these directions.

Lest I overstate my case, we say that that is a necessary – I will come to it but we say that is a necessary presupposition of the trial to be properly directed, particularly where the mental extension that is the critical thing is not directed on.  That is coming in a minute.  I will go through these directions.  So then we see at the top of 628, now, there are some directions that were addressed recently by this Court in Smith and Afford that were very popular in New South Wales after Kural referring to real chance and significant chance, but the point about it again is that it is pursuing the idea that he actually knows what he is dealing with specifically because it is bringing in a level of recklessness as to what it actually is. 

Now, I am not complaining about that direction per se but what I am saying about it is it is not getting you to anything more than the issue of possession.  Now, then we go down on that page ‑ ‑ ‑

KIEFEL CJ:   Do you go so far, Mr Game, as to say that if, for whatever reason, intention was not in issue, to take Justice Bell’s point, that there must nevertheless be directions on intention?

MR GAME:   I do say that, yes, your Honour.  But, can I say that this is ‑ ‑ ‑

KIEFEL CJ:   Why is that the case if trial judges ‑ the duty of trial judges is to give directions in accordance with what is truly in issue?

MR GAME:   Your Honour, I think the answer to that question would be this; if it is said, say, take the facts of Krakouer, Mr Krakouer was said to be the man who they were talking to was going to receive the drugs and if there is an understanding about the issue and if the defence say that they are not disputing the issue that if possession is established then intention is not in issue, then you can direct the jury on it but tell them that that is taken to be established but that is not this case.

So, you do have to direct on it but you can tell them, the jury, what the situation is.  But the jury has to understand and meet some bounds of the issue in contention.  But it is actually a bit like Quartermaine where you have shooting next to somebody where you have injury ‑ shooting of a kind likely to cause injury which is a physical element to which no mental element attaches, one might have thought it was inevitable but the jury have to be told about it. 

BELL J:   Your point here is that this case is to be distinguished from a case where there is no direction on an element because it was not an issue at the trial because defence counsel did not realise that section 11 did not apply.  That error seems to have been shared by the Crown and by the judge and so you say from that one cannot draw an inference that this was an adversarial trial conducted on the basis of a forensic decision that intent would not be an issue in the event possession was proven.

MR GAME:   Yes, your Honour, but I would also say that the prosecution – the prosecutor would have been saying, look what they were doing in Sydney, look what they were doing here, look what they were up to, they were cutting the drugs for the purpose of – and that would be the directions on ‑ ‑ ‑

BELL J:   Mr Game, one might think that a prosecutor in such a case would be saying to the jury, look at the quantity, members of the jury, what conceivable purpose would they have but for supply and not even worry about the resealable bags and the MSM.

MR GAME:   Yes, but, your Honour, by the time you get to the end of these directions, a whole lot of things are eschewed that would be kind of sitting in the heart of the case if it was a case directed towards the question of intention, such as ownership was eschewed. 

BELL J:   Sorry, I do not understand that.  The whole question here, the focus of the trial was the capacity of the State to establish beyond reasonable doubt that the appellant exercised control or dominion over the intended drugs.

MR GAME:   No, the question for the State was to establish possession for the purpose of sale or supply.

BELL J:   I understand that.

MR GAME:   They had to do that irrespective of what defence counsel thought.

BELL J:   But the matter that I am raising with you is what was the focus in the way this trial was conducted?  Now, I understand your point that everyone was acting under a misconception and it is the significance of that really that is at the heart of your appeal, is it not?

MR GAME:   Yes, your Honour, I accept that.  But what I am saying is it is not just defence counsel; it is everybody.

BELL J:   But why does it matter whether or not the Crown Prosecutor might have added an extra quiver to the bow?

MR GAME:   It is not an extra quiver.  The reason it is not an extra quiver is that they have to be much more explicit about what they say about possession.  They could not run this case of if he has got some bare involvement, inspecting it, looking at it.  You would actually have to deal with this issue of what are they up to.  That is eschewed by these directions.

EDELMAN J: Is the essence of your point really that as a matter of characterisation of what went on at the trial, effectively the trial has been run as a section 6(2) case on its proper characterisation, and not a section 6(1) case?

MR GAME:   Yes, exactly, that is the whole of my argument almost.

EDELMAN J:   So the accused or the appellant has been convicted of an offence which is not the charged offence?

MR GAME:   Yes.

BELL J:   So that is to reason that this case is on all fours with Handlen and is not a case such as that contemplated by the plurality in Krakouer ‑ ‑ ‑

MR GAME:   That is right.

BELL J:   ‑ ‑ ‑ where there is a section 11 direction given but it is in the case of a charge of attempt alone where no complaint is made about that by the defence.  Their Honours contemplated that perhaps that might be susceptible to the proviso, and the difference that you draw is that everyone was under the same misconception?

MR GAME:   Yes, your Honour, but I would add this about Krakouer.  One can overstate the significance of the fact that there was a conspiracy charge as well, and the only significance of it was that it may have been easier to prove – sorry, it may have been easier to prove and therefore an acquittal may have been obtained on the conspiracy charge which may have fed into the jury’s – but that is not said with, shall I say, certitude.  It is kind of put up as a prospect.  But for what it is worth, we would invite your Honours’ attention to Justice McHugh’s judgment in Krakouer which looks at the thing in a more fundamental way.

But again in Krakouer it is said not every direction is a fundamental error, but one has to actually look at what is the nature of the misdirection, and we say – and I hesitate to use the word “jurisdictional” - but it is jurisdictional because what was actually proved did not engage on the question of section 6(1) which engages the question of penalty, which is 25 years for one and two years for the other.

So if I come back to these – I will not have anything to talk about when I have got to the end of these directions.  If we go to the bottom of 628, at line 40:

Members of the jury, the State does not have to prove what the accused had in his mind before he got to 43A Falstaff Crescent.

Again, that may be so, but as I said before, if you are looking at establishing possession for the purposes of sale or supply, you would be putting to the jury that it was highly material what was in his mind before he got there because he went there at a particular time for the purposes, it was said, to unpack the drugs and cut them for the purposes of sale.  That is how it would look.

Then the second element is put at the bottom of the page, line 50, where it is said that it could be either “physical custody” or, at the top of page 629, “control”.  Then it is put in the next paragraph:

Members of the jury, you will appreciate from what I’ve said so far that you do not need to own something to be in possession of it.  You can possess something by physically holding it.  You can also possess something without physically holding it or touching it.

So you do not need to own it and you do not need to actually hold it.  That might be something like inspecting it and, if it is inspecting it for the owner, and it is not said that Mr Lothian is the owner, and we see that at the following page 631, line 20 – if I jump forward for one moment and you look at page 637, lines 15 to 20:

The defence also said to you on a number of occasions . . . that Mr Lothian was the owner . . . As I have said, the State does not need to prove and I would suggest to you can’t possibly prove who was the owner of the drugs.

If you go back to 629, the passage at 10 to 15:

you do not need to own something . . . You can possess something by physically holding it . . . without . . . holding it or touching it.

Again, if you were giving directions on possession qua intent to supply, you would be very interested in the question of ownership because if it is doing it for some other person, then if you are going to get a case – if you can get a case – you would need to go to the extent of definition of supply.  You would need to articulate it and particularise it.  At the bottom of the page then you see:

Members of the jury, you can also possess something temporarily and even for a limited purpose.

A limited purpose does not have an implication of possession of the whole lot.  It could be a limited purpose such as tasting it or deciding whether you will buy it.  But, your Honour, I am just ‑ ‑ ‑

BELL J:   Mr Game, there were, I think, some objections taken below, including to the directions on possession.  Now, as I understand it, you are here not on a ground that challenges the directions as to possession.  So, an invitation for us to consider it was open to the jury to conclude that all that was found was that the appellant inspected ‑ ‑ ‑

MR GAME:   That is not my point.  My point is that these directions do not get you to supply.  These directions just get you to possession.

BELL J:   Yes.

MR GAME:   And, you cannot infer anything more from them.

BELL J:   You cannot infer an intention to supply from the possession of the substantial quantity.  Is that the point?

MR GAME:   Even if it is the substantial quantity as directed because it could be just…..You actually have to articulate the case.  But, what I am saying is, there are a cascading series of possibilities here that are being put to satisfy possession and they do not necessarily have a connotation of the whole lot, or even much more than a quite limited amount.  When we see “even for a limited purpose”, that is what the jury is being asked to do to satisfy the second element of possession.  It could be seeing if you will buy it.  It could be testing it for somebody else, the owner, and that is why the idea of somebody else being the owner is introduced.

Then we come over the page to 630.  We see that you can possess something by lending them it, like lending a book and returning it.  If you are lending something, then it is not yours to sell or supply unless you buy it or unless you report to somebody else that it is appropriate to take.  It may be that you could get into the extended definition but you would have to articulate that case.

So, what I am seeking to demonstrate is, these directions do no more than establish possession qua possession and they give no comfort, whatsoever, on the question of intention.  It would be quite inappropriate speculation to speculate – if one could – that the jury was necessarily satisfied about the question of intention. 

Then we see at the bottom of the page, they said not necessarily what he did with the nine boxes – talks about his control.  Then we come over to the page at 631 – I have just referred to this at line 20:

As I have said, the concept of ownership is entirely different to the concept of possession.

It does not allege ‑ ‑ ‑

BELL J:   I think the paragraph before is relevant when the trial judge identifies ‑ ‑ ‑

MR GAME:   Yes.

BELL J:   ‑ ‑ ‑ the question.  And, the question is the exercise of control and dominion over the intended drugs.

MR GAME:   Yes, your Honour.  But, the thing is, the Crown is not saying it is Mr Lothian that is the owner.  The judge is not saying that Mr Lothian is the owner either.

BELL J:   No.

MR GAME:   If you look at page 637 I took you to, it is not being said that Mr Lothian – so, it is somebody else.  If it is somebody else or it is Mr Lothian and somebody else, then a case has been posited about something being done in respect of the drugs to, shall I say, report to or inspect for the owner of the drugs and these are just the natural meanings that emerge from these directions and it involves no necessary assumption about quantity. 

Now, for example, you may check one part of it to see if you will buy it, you may taste it, you may do something with it.  That does not involve possession of the whole quantity - even if there is a prospect that you will buy it or take the whole lot at some later point.

BELL J:   Mr Game, was such a suggestion ever made?

MR GAME:   Your Honour, I will take you to what was made. But the point though is this about that, in a sense, it matters not what was made because of the misapprehension but a point was made but the problem that defence counsel had on this was that on these directions if you possessed any part of them, he was guilty. So how could he make a concession about possession of part of them without putting himself in the line for a conviction for the offence under section 6(1)? He does say something that I will take you to very shortly.

Then you go to – we see in line 29 on page 631.  As I said to you, I have said it, I will not say it again, but ownership would be highly material if you were looking at sale and supply but do not make any finding as to ownership:

This trial is concerned about possession of those drugs.

But it is not. Then the third requirement is set down - said to be intention to exercise control and then it referred to anything he did with the drugs. His Honour then says over the page at line 12 in dealing “in some way” - again, that is very limited. Then you come to the misdirection at the bottom of the page. Then, on the top of 633, I have taken you to it, the jury have basically been told to ignore what happened in respect of the issue of supply. So what the Crown established, we say, was a case under section 6(2) and section 6(1) played no part in what was actually established.

Lastly just on this I wanted to take you back to - at 637 his Honour refers to what defence counsel said and I will just take you back to what defence counsel said at 433 and as I said before defence counsel has to be pretty careful what he says on his understanding of the law because if he concedes to any possession then he has lost the case.  But what he says at 433, line 32:

If a person turns up somewhere where something bad is happening, you don’t assume that they are bought into it completely.

Well, he is clearly when he says “bought into it completely” talking about something less than total involvement or the whole quantity of drugs.  Then he says – he talks about buying a car, buying a Nissan.  He is clearly – he has got to be careful about what he says because he thinks he will lose the case if any possession is established, but he is clearly talking about – he says, “I like . . . one for myself”:

there’s 10 beautiful – 10 Nissans that I like – I want.  I’ll get one for myself, and if I like it, I’ll get one for my daughter –

i.e. contemplation of some possession and possibly some more – purchase of more.

BELL J:   Then he goes on to say:

You don’t control those Nissans just by looking at them.

Is that not the point that was being made?  Whatever suspicion might attach to the circumstances of his presence in the premises, it was insufficient to establish that he exercised dominion or control.

MR GAME:   Your Honour, when he says – the reason why he says:

You don’t control those Nissans just by looking at them ‑

is he wants to avoid being convicted of possession, not because he does not want to make the forensic point, because if he had understood the forensic point then he would have been able to make a much stronger submission about the subject.

EDELMAN J:   This is effectively an alternative submission though, is it not?

MR GAME:   Yes, your Honour, quite.

EDELMAN J:   On your approach, as I understand it, you only get to these sort of questions ‑ ‑ ‑

MR GAME:   That is right, yes, your Honour, this is just an alternative; that is correct.  Then we say – then he finishes:

The State didn’t prove what Kalbasi had in mind when he went down there.  But what they certainly didn’t prove is that he had any ownership, any control, knowledge, possession of those drugs before he got there.

So, yes, in answer to your Honour Justice Bell, he is talking about something less than control, but he is contemplating the – he is trying to engage with the possibility of an involvement with substantially less than the whole, the prospect of buying, the prospect of buying a small amount and, if a small amount was okay, buying another amount.  That is why he talks about one Nissan and then another Nissan.  That is what this address means, and that is what he put to the jury.  So, he is putting it – he is putting it squarely, the prospect.

So that then finishes what I wanted to say about the actual evidence and I come now to the judgments in the Court of Appeal.  Now, in the judgment of the President, there is just one paragraph I wanted to address, and it is this passage at paragraph 30, page 836.  If you look at that sentence, it is saying would have been inevitable.  That is to say, on a reading that is a conclusion in possession of the whole lot. 

The conclusion would have been that he was possessing for the purposes of sale.  That is a kind of conditional proposition.  But the question really that one has to ask in this issue is what weight do you give to the jury’s verdict when there is no directions on the question of intention, having regard to the directions that were given on possession.  That is the question that has to be asked if you are looking at it in terms of what I describe as lost chance of acquittal.

KIEFEL CJ:   That is not if you apply Weiss, though.

MR GAME:   Well, if you apply Weiss and just ask yourself am I satisfied beyond reasonable doubt, then not necessarily, but I will come to this shortly.  But Weiss has been in more recent cases seen as feeding into that question about inevitability of conviction and informing it.  So we say that is not the right question, but you have to have regard not to, shall I say, the conditional but what weight you give to the verdict, as I said, having regard to the directions that were actually given on possession.  But our point antecedent to that is that it is a necessary presupposition of the trial that each element of an offence is seized in directions.

KIEFEL CJ:   Now, that relies upon Justice McHugh’s approach in Krakouer.

MR GAME:   Yes, that is correct, your Honour.

KIEFEL CJ:   Why do you say the majority, who were not of that view in Krakouer, was wrong?

MR GAME:   Well, I am not saying - what I say is that one has to tease out the proposition that it is said to be not in every case that a misdirection and what we say is this - if you take a case like Holland where the jury were not directed on intention with respect to attempt, but they were told that attempt was trying to do something so that they would have necessarily understood the direction, in that case it is actually seized.  If one wants to distinguish a case like Krakouer everything was understood about the provision by the counsel and yet they made no point about intention.  This case is different to that but ‑ ‑ ‑

BELL J:   What is the significance of the concession that was made when the question of intention was raised?

MR GAME:   The concession in this case or Krakouer?

BELL J:   In this case.

MR GAME:   Sorry, the significance of the concession is – and that is why the affidavit was put on, to clarify that he was under a mistake not that he made any forensic decision about the point.  But I have said this before and so has everybody else and so has the court on the previous trial and everybody else.

EDELMAN J:   Your point about Krakouer is really that there is no difference between the approach of Justice McHugh and the approach of the majority in terms of principle.  It is just a question of characterisation of what went on at the trial and they differed in their characterisation that this is a different characterisation.

MR GAME:   Yes. 

KIEFEL CJ:   Do you adopt that approach?

MR GAME:   Yes, I do adopt, I do.  I put it with slightly different words but I said too much can be made, before, of the existence of the conspiracy charge in Krakouer and the comment that not every misdirection amounts to a fundamental defect but the language we would suggest should be used that gives a better idea of it is necessary presupposition of the trial and there are two – I am kind of jumping ahead of myself here but there are two ideas in that that flow through which is, shall I say, the idea of a fair trial and then there is the idea of validity and validity is relevant in say an indictment that is not signed and so forth.

But those are kind of the ideas - and the idea, the words “presupposition of the trial” actually seem to come from Wilde at the latest but that does catch the idea.  The idea of fundamental defect is kind of difficult to manage.  It is a sort of unruly beast because one is not quite sure what a fundamental defect is but a necessary presupposition of a trial - you need this and you need, like, for example, in Cesan, you need a jury that is awake, a judge that is awake.  You need reasons in AK and so forth.

BELL J:   It is accepted that the omission to direct on an element, where that element is not in issue, is not a fundamental Wilde‑type error.

MR GAME:   I add to that, if that issue is not truly in error - if it was truly the case that it was not in issue, yes.  If it was truly the case but it is not truly the case in this case.

BELL J:   Again, it is because as - on your analysis the fact that everyone was under the same misapprehension takes us away from, if one goes back to the analysis of the plurality in Krakouer, the conspiracy count raised different considerations to a count of attempt to possess simpliciter.

MR GAME:   Yes.

BELL J:   Their Honours contemplated that where one is convicted of an attempt to possess the process of reasoning from the quantity to a conclusion of intent might be open where there was no protest but of course their Honours were contemplating that that was a forensic choice.  That is the one issue in this, surely.

MR GAME:   Yes, but your Honour, in paragraph 32 in Krakouer which is at ‑ ‑ ‑

KIEFEL CJ:   It is page 215 and I think paragraph 33 really raises it because the point their Honours are making is that there was but one set of facts and two offences and the jury could have reasoned through the conspiracy to the other.  That is why their Honours concluded it could not be said at paragraph 37 that conviction was inevitable.  That is the point but that is not this case.

MR GAME:   It is not this case, but we would say that cannot be, as it were, held against us when the facts and the circumstances of this case are quite different for other reasons.

KIEFEL CJ:   Quite.

MR GAME:   This is also more conditional than one might think because they say it might have been possible to say.  It is not very strong and also, with respect, it is not a very strong line of reasoning because the whole thing is then hanging on the possibility that the more difficulty establishing the ulterior intent and the conspiracy might then feed into an acquittal on the attempt charge.

As I said before, one cannot take too much from that which is said in Krakouer and yet this case is more or less decided on the basis of that passage in ‑ ‑ ‑

KIEFEL CJ:   But if you ask the question that was ultimately posed in Krakouer, pre‑Weiss of course, in this context would it not be said that, given proof, if possession of the large quantity of drugs was proved, then intention would be inferred and conviction would be inevitable?

MR GAME:   It depends because we say if possession of the large quantity was proved ‑ ‑ ‑

KIEFEL CJ:   Because you are only concerned with one offence here, as distinct from Krakouer.

MR GAME:   Yes.  If possession of the large quantity was seized as an issue, as the issue to be determined, but it is not necessarily seized is the issue.

KIEFEL CJ:   That is your point.

MR GAME:   It is part of my point.  The other part of my point is that, whatever quantity, these possession directions are put in such a way that eschew consideration of intention to supply.  That is the President’s judgment.  Then we come to Justice Mazza and Justice Mitchell’s joint judgment.  So ground 1 is upheld at page 851.  Then if we go to the consideration of the proviso, this appears at page 869.  Now, what we say about this at 869, in paragraph 179, according to Hughes v Western Australia – I will not take your Honours to it – the proviso is broken into two issues:  outcome and process.  Then we see at line 39:

In other words, where the process aspect is engaged, the proviso cannot be invoked even if the appellate court is satisfied beyond reasonable doubt of the accused’s guilt. 

But that tells you something about what the court thought was the test for outcome, which is satisfaction beyond reasonable doubt, when in Weiss itself that was only a sine qua non of a further inquiry, and not a further inquiry limited to issue about fundamental defects, but a further inquiry, it would seem, about the significance of the error.  At least that is how it was treated by – I will come to this in a minute – the time one comes to AK, which is only a couple of years after Weiss. 

So if we then go to page 870, there is an extraction of what is said in Hughes and that is all about satisfaction beyond a reasonable doubt where the reference at the bottom to [43] in Weiss is a reference to considering the error only in the context of whether or not the court is satisfied beyond reasonable doubt about the question of guilt.  So what that means, in our submission, is that the court is asking itself purely a question about are we satisfied beyond reasonable doubt of guilt.  Then we go on to the discussion of the submissions and I will not take you through those, but if I could just take you to one passage further on at page 872, paragraph 189.  It is said:

In substance, the appellant submitted that, for two reasons, the error in ground 1 was a ‘process’ ‑ ‑ ‑

Now, I just want to clarify one thing, and I may be being excessively defensive, but it is put against us that we were sort of the genesis of this process and outcome.  But if you look at our submissions at page 811, you will see that that is not how we put it but that is how the local – I say “local” – that is how the Western Australian jurisprudence has analysed the proviso and it still analyses it in that light even since this Court’s decision in Filippou which is discussed in another case called Petersen that is referred to in our submissions but not in our outline. 

Then we come to paragraph 192 and following.  What the court does from 192 through to 206 is ask themselves whether or not they are satisfied beyond a reasonable doubt about the guilt of the accused.  Now, when you get to 206, we say the same error is made that we saw in Justice McLure’s judgment.  One has to ask oneself about the verdict absent directions on intention then in the context of the directions of possession that were given.  When the court says:

we are satisfied . . . that he exercised control over the entire 4.981 –

we actually go so far as to say that that is substituting the appeal court for the jury, and not even in the question of whether a verdict is unsafe does that substitution take place.  So we say that ‑ ‑ ‑

NETTLE J:   You are in 206 now?

MR GAME:   Yes, I am in 206, your Honour.

NETTLE J:   What about the next sentence, given the quantity?

MR GAME:   Given the quantity, yes.  Your Honours, so given the quantity it is inconceivable would possess them without ‑ that is a finding that they are making but that is a finding that they are making absent that question ever having been addressed or posed.  As I said, we say that this conditional exercise should not even happen in a case like this but if it does happen you have to look at it in the context of the directions that were actually given, not as a free‑standing exercise of the Court.  So we say that is not the right approach to take with respect of the proviso and in this respect we are challenging Weiss.  I will come back to what we say about Weiss shortly but ‑ ‑ ‑

NETTLE J:   Just to finish this point, do you say the same also of 214?

MR GAME:   Yes, your Honour, but what I say about 214 is a further point which is this; what happens at 214 is that now we come to what is described as the process part of the exercise.  Now, what is happening at 214 is that in what is described as the process part, we have been knocked out because it is said that we did not have a defence but that is not relevant – if you are asking the process question, in our submission, that is not relevant to the question.  That is lining us up with a case where, as Justice Bell put to me, you say to the Court, we are not putting the issue of intention in issue at all.  That is lining us up with that.  This is – 214 is not an appropriate way of reasoning about the issue of necessary presupposition of the trial but, again, it is all conditional.  If you engage with it and you say there was no arguable defence that is not the question.  The question is how would the Crown have put its case and where would that have led?  It says once the appellant was found to have possessed the 4.981 is not correct.

BELL J:   Mr Game, do I understand, you take issue with the conclusion in the way the directions were given that the issue presented on possession, did he exercise dominion and control perhaps in common with Mr Lothian, but, nonetheless, was he exercising dominion and control over the intended drugs, that expression referring to the quantity of the drugs?

MR GAME:   Sorry, “necessarily” is the critical word, “necessarily” the whole quantity.  But the other submission I have made and I make it strongly is that those directions eschew intention and it does not matter what quantity you are talking about in that context, they are just directions for possession.

BELL J:   That may be accepted.  I do not quite – I have difficulty – I understand your argument to the extent you say that given the misunderstanding defence counsel did not put a case that he might otherwise have put and that is an argument that can be evaluated on its merits.  But just looking at the directions that were given, if one accepts possession was established beyond reasonable doubt of the intended drugs, referring to the whole, then the circumstance that no attention was directed to the question of intention in those directions seems to me somewhat beside the point.

MR GAME:   But, your Honour, what we say is this.  If one goes down this path then the question you would be asking is how would the Crown have put its case on intention having regard to the ways in which the case was put on possession?  That takes you somewhere else entirely than a necessary conclusion about intention.

BELL J:   Mr Game, let us assume the Crown would have put its case much in the way it appears to have been put at the point where the question of whether intention was live was raised, namely, if you are exercising dominion and control over this quantity of methamphetamine there is an irresistible conclusion about your intention.

MR GAME:   But that is not the way it was put.  I have taken you through a whole series that were put that are far more oblique than that.  You do not have to touch it.  You do not have to know what it is.  You could be borrowing it – all of those things.

BELL J:   We are going round and round.

MR GAME:   Your Honour, we may be going round in circles, but these are very limited forms of engagement with the drug.  If you want to build any case of intention out of that, then one would have to actually strive to articulate it.

GAGELER J:   But, Mr Game, one reading of what is happening, at paragraphs 192 to 206, is that the judges are ignoring entirely the directions given to the jury.  They are going straight to the evidence and they are forming their own independent conclusion on the basis of that evidence as to whether the elements of the offence are made out.  Is that a fair reading of what they are doing?

MR GAME:   That is the point I was trying to make about 206 is that they are just asking themselves and we say that is usurping the role of the jury.  However you approach this there is a level of – the thing has to be hypothesised.  Ultimately, in the same way as unsafe, for example, ultimately it is not – it is whether it was reasonably open to do one thing or the other.  We say the question ultimately is was it reasonably open to acquit.

KIEFEL CJ:   You have to overcome Weiss to get to that point.

MR GAME:   Well, when your Honour says we have to overcome it, the later cases articulate Weiss in a particular way that gives it a different – that construes it in a different way than that and we rely on those cases and I will come to those shortly.  But on Weiss ‑ ‑ ‑

KIEFEL CJ:   Do you say that they do not apply Weiss or that they ‑ ‑ 

MR GAME:   They absorb it.

KIEFEL CJ:   ‑ ‑ ‑ use phrases which were more common pre‑Weiss, but they nevertheless apply it?

MR GAME:   Well, they absorb Weiss and they absorb Weiss in the sense that the Court’s assessment of the evidence and its satisfaction beyond reasonable doubt feeds into the question about whether it was open to acquit, and that is the way it is analysed in Baiada Poultry and Baini and that is the rationalisation for Krakouer. 

But when one looks at Weiss itself, if Weiss, shall I say, has a pedigree, then the pedigree is in Justice McHugh’s judgment in Festa where he says you have to analyse the material for yourself, you being satisfied about whether the verdict was inevitable.  That heritage relies on Chief Justice Barwick in cases like Driscoll and Storey but none of that jurisprudence sidelines Mraz v The Queen which is itself based on a 1909 or 1908 decision of the Court of Appeal.

BELL J:   Which gave no consideration to the text of the common form provision and did not grapple with the difficulty of distinguishing a miscarriage from a substantial miscarriage of justice, which is an issue that Weiss does come to terms with.

MR GAME:   Well, your Honour, the problem with Weiss in terms of the error is it is not explicit about what one does with the error and in paragraph 43 it seems to be saying that you have regard to the error and whether or not you are satisfied beyond reasonable doubt.  So, that is in paragraph 43.  But then in paragraph 44 the satisfaction beyond reasonable doubt is cited as a negative proposition and that is fine if it is a sine qua non and, as I said, by the time we get to AK the significance of the error is back firmly in the sights, as it has been in really all the cases that have followed that.  But paragraph 41 seems to imply satisfaction beyond reasonable doubt as a kind of freestanding question.

Now, it is understandable that assessing the significance of the error – sorry, that the court assessing the evidence for themselves in the sense said by Justice McHugh in Festa is critical having regard to the jurisprudence about satisfaction beyond reasonable doubt.  But the question of satisfaction beyond reasonable doubt is framed in terms of an issue directed to the first aspect of the appeal provision, namely, the verdict cannot be supported and the question whether it was open to convict, whereas the question on the proviso is addressed to the reverse question which is whether it was open to acquit.  So, by the time one gets, as I said, to Baini, Baiada Poultry and Krakouer, that jurisprudence is firmly back in place, and we say rightly so.

I would also put another proposition which is this, and it may not be a very attractive one.  The second placitum of the appeal provision – it is very similar to the conform provision – is a wrong decision on a question of law.  You could have a wrong decision on a question of law that engaged the provision that was quite trivial.  You could be satisfied that you can lose your chance of acquittal without ever having to address yourselves to the question of whether or not you were satisfied beyond reasonable doubt about the question of guilt, having regard to the trivial nature of the error.  One cannot have a provision that operates differentially because you would have a provision in which appeals were upheld for trivial errors but were dismissed for major ones.

BELL J:    But the difficulty that you are not coming to terms with and the difficulty that is dealt with directly in Weiss, if you go back to the Court of Appeal in Weiss it is pointed out that the error could have been a second limb error, in which case as soon as you identified the error you went to the Crown to establish no substantial miscarriage. 

On the other hand, you could have viewed the error in Weiss as a failure to exercise the Christie discretion and coming in as a third limb error, in which case the onus is on the accused to establish the miscarriage of justice and then there is that difficulty of distinguishing a substantial miscarriage from the miscarriage.

There are problems inherent in the common form provision, which, if one goes back to Cohen and Bateman, as you invite us to do, makes no attempt to grapple with that difficulty.

MR GAME:   But, your Honour, if satisfaction beyond reasonable doubt is a sine qua non, as it said in paragraph 44, then what is the thing that is the sine qua non to?  In all of the cases that have come since Weiss, that sine qua non has addressed itself in one way or another to the significance of the error.

BELL J:   That may be so.  What one sees in Weiss is a recognition that one cannot attempt to list exhaustively the categories that answer the description “a substantial miscarriage of justice”, but to prevent appellate courts from dismissing errors or irregularities as not having occasioned a substantial miscarriage of justice too lightly, the Court encouraged the requirement as the negative condition that the Court must be satisfied of guilt before it could contemplate it.

MR GAME:   Yes, but what I am saying is it does not wipe out consideration of whether or not the error could have made a difference and that is a really good test.  Whether it could have made a difference - did you lose a real chance of acquittal, it actually works as a test because it is asking you about the significance of the error in the context of the case.  It is not a taxonomy but it really helps understand what it is that one is addressing.

By the time one gets to Baiada Poultry, the question of satisfaction beyond reasonable doubt is feeding into that question, as it does in Baini which I will come to shortly.  Moreover, I would say, it is required as a matter of construction that miscarriage of justice with respect to the trial – not the Court’s own, shall I say, assessment about whether or not they think the person is guilty which carries with it the kind of level of, shall I say, paternalism about is that is eschewed by the jurisprudence on whether the verdict is open.

KIEFEL CJ:   But in Weiss it was said at paragraph 39 by a unanimous Court that the question about whether there was a substantial miscarriage of justice requires an objective task, not one of speculation or prediction as to whether or not it would have made a difference.  It is a complete rejection of the approach for which you are contending.

MR GAME:   The approach which I am contending is to almost take it word for word out of cases such as Filippou, Baini and Baiada Poultry.

KIEFEL CJ:   We should get to those in due course.

MR GAME:   Yes, your Honour.

GORDON J:   Indeed, while you are there, in paragraph 40, they deal with the very phrases upon which you seek to hang your hat as being not phrases that they dismiss but phrases which are useful in emphasising the high standard of proof of criminal guilt and undertaking the very task that the Chief Justice has just outlined.

MR GAME:   Yes, your Honour.  But if one undertook that exercise in this case ‑ ‑ ‑

GORDON J:   Which exercise is that?

MR GAME:   The exercise of being satisfied beyond a reasonable doubt.  Then, shall I say, being mindful of this question about loss of chance of an acquittal, then, as I said before, you would be addressing yourself to satisfaction about the question of intention to supply, having regard to the fact that no directions were given on the subject and having regard to the directions that were given on possession and that would leave the Court in the position that the jury’s verdict was of no weight on that question.

GORDON J:   That does not sound like a problem with the process.  It sounds like a problem with the outcome.

MR GAME:   Your Honour, in this case we say it is a problem with both.  But, the problem – we say, satisfaction beyond reasonable – if satisfaction beyond reasonable doubt is a sine qua non – as it is said to be in paragraph 44 and repeated in many cases – and the sine qua non still requires you to consider the significance of the error, then there is no problem with standing.  All we are saying is that you have to give freestanding consideration to the significance of the error in the context of the trial.

KIEFEL CJ:   But when you talk about the significance of the error, it is relevant to the question of whether or not there has been – in the words of Weiss – something affecting the fundamental presupposition of a trial.

MR GAME:   Yes, your Honour.

KIEFEL CJ:   But if you are not in that territory and you are looking at a misdirection that does not have that quality, different questions arise.  That is really what Weiss is saying – and subsequent cases.

MR GAME:   Yes, quite, your Honour, but say one took a case of wrongful exclusion of evidence then surely it would be relevant, the critical question would relate to how significant the evidence was, not how strong the Crown case was.

KIEFEL CJ:   Quite, but if you have answered that question in the negative, the proviso then applies in the way in which Weiss says it must.

MR GAME:   Yes.  But, your Honour, in that consideration, you would never get to the question about whether or not you were satisfied beyond reasonable doubt about guilt.  If the error was trivial, you would not have to consider it.  If it was major, you would not have to consider it either. 

KIEFEL CJ:   I do not know where you get trivial – the dichotomy of trivial and not trivial in relation to Weiss.

MR GAME:   Well, one cannot engage with the proviso unless one engages with the nature and significance of the error. 

NETTLE J:   Well, Weiss does not say to the contrary.

MR GAME:   No, quite, your Honour.  So, what I am saying is this.  If the error was quite a trivial one about exclusion of a piece of evidence that could have had no significance in the trial, that is the end of it.  You do not even need – although you get through the second leg of the relevant ‑ ‑ ‑

KIEFEL CJ:   I do not think we are at odds and that is because it does not affect the fundamental presupposition which Weiss puts to one side but acknowledges in paragraphs 45 and 46.

MR GAME:   That is right.  Yes, your Honour.  We can see a way through these cases, we say that ‑ ‑ ‑

KIEFEL CJ:   Subsequent cases pick up on what was left open in Weiss deliberately and applied in the way for which you contend.

MR GAME:   Yes.  So, none of the things that we are saying are put as a taxonomy for the words of the section but we do say that whether it is a presupposition of the trial or whether it is something less assisting the significance of the error is at the centre of the exercise in the consideration of the proviso.

GAGELER J:   Assessing the significance of the error to what?

MR GAME:   The question of conviction.

GAGELER J:   By the jury?

MR GAME:   By the jury.  The other thing about Weiss is the question that was posed was actually the thing that brought the case to life was kind of a strange question which was whether was it this jury or was it a hypothetical one and if one went back to Justice McHugh’s judgment in Festa then the answer is immediately available which is the Court has got to assess the material for itself.

BELL J:   If you look at Weiss in the Court of Appeal, the thing that provoked the debate was Justice Callaway making clear that the Mraz test, whether it is expressed as the loss of a real chance of acquittal or whether it is expressed as inevitability of conviction, his Honour saw no distinction and then his Honour made clear that his Honour understood one applied the proviso even though one might contemplate that another hypothetical jury might acquit.  That might be seen to be an unattractive analysis of how one dismisses an appeal on a conclusion of no substantial miscarriage of justice.  In part, it was dealing with that issue where the Court in Weiss made clear that one is not concerned with speculating about what a hypothetical jury or this jury might have done.

MR GAME:   Quite, your Honour, we would accept there is a certain hard‑nosedness about this but the hard‑nosedness was actually caught in that idea of real chance of a – it was caught by that idea.  One is not just hypothesising about something in abstract but the point about it is that just as in the exercise of say, M v The Queen, or the exercise, the Court has to engage with the evidence and that is the real thing that is so important from Weiss.  Now, what I wanted to do, your Honours, was to briefly take you to some recent decisions of this Court.

NETTLE J:   Just before you do, can I delay you one more – back to 214.

MR GAME:   Yes, your Honour.

NETTLE J:   You said before the reason that does not work – they are my words – is because it is not an appropriate way to reason with respect to the necessary presuppositions of a trial.  Is that to say that one can never so reason when a direction as to an element is left out or just in the particular circumstances of this case?

MR GAME:   Well, it may be, as her Honour the Chief Justice and Justice Bell put to me, that if the issue was really not in issue that might be the case, so to that extent I agree.  But if the ‑ ‑ ‑

EDELMAN J:   Not in issue because of a forensic concession.

MR GAME:   Yes, that is right.  Not in issue but in the sense that the jury are told this is an element that has to be established but it has been conceded and you can take it that it has been proven X, but that is not this case.

NETTLE J:   Then it would never be appropriate to reason in this way you say?

MR GAME:   That is right, I do say.

NETTLE J:   No matter how overwhelmingly probable that the jury would have gone one way.

MR GAME:   That is right, yes, I do say that.  I say if it is put in issue, if it is seized, it has to be directed on.  But one might remember though that in Quartermaine the non‑direction was on a quite remarkably obvious thing because in the Western Australia murder provision it says, done with a certain intent, then it says, likely to cause bodily injury.  Well, shooting at someone is likely to cause bodily injury and that is the issue that was not left.  But we have got the reverse here.  That is a physical element to which no mental element attaches.  This is a mental element attached to the physical element of possession.  Now, I wanted to take your Honours briefly to some ‑ ‑ ‑

BELL J:   Just before we go to that can I take you back to appeal book 392 where we get the concession.  Am I right in understanding that the judge raises with defence counsel what do we say about the fourth element, namely, the question of proof of intention, and at that point defence counsel says, if my client is found to be in possession as I put, if he is in possession of it ‑ he is not in possession of it, the inference would be that he is in possession of it intending to sell or supply the prohibited drug and then the judge asks about the presumptions.

MR GAME:   Yes, I understand, your Honour, but that is why we got the affidavit from counsel, to ascertain what was in his mind, and what was in his mind is he did not realise – and nor did his junior, both of whom put affidavits on, and one of whom was a local and one was not – and the previous trial was conducted by an out‑of‑towner as well, for what that is worth – but the reason why we put that affidavit on was to show that that was not a forensic decision.  The decision was made in ignorance of the operation of the deeming provision.

KIEFEL CJ:   That may be but the reference to which Justice Bell was taking you, it is clearly obvious to senior counsel that the inference would be ‑ just as a matter of commonsense the inference would be that he is intending to sell.  That is what is motivating him at the point of concession.

MR GAME:   Well, we challenge that, your Honour, because we say that his affidavit shows, and was accepted ‑ ‑ ‑

BELL J:   Yes.

MR GAME:   ‑ ‑ ‑ it is said in paragraph 97 that the Court of Appeal at page 851:

The prosecutor, defence counsel and the trial judge all shared the misapprehension –

So whatever is in his mind there, he is thinking in his mind that he does not have a case unless he goes into evidence.  He is thinking to himself, unless I can reverse the onus I am going to lose this case.  That proposition there is informed by his misunderstanding about the work that section 11 has to do and that ‑ ‑ ‑

KIEFEL CJ:   I do not see how that actually works.

MR GAME:   Well, the way it works is this; that he would have to get into ‑ ‑ ‑

KIEFEL CJ:   He is not talking about a deeming provision.  He is talking about a natural inference as a matter of logic.

MR GAME:   Well, what he says is his Honour then talks about the deeming provision, and then he says “yes, that is correct”.  One has to be mindful of the fact that what he says is at page 804 – it is extracted in his affidavit.  The passage I was just at, 851, paragraph 97:

The prosecutor, defence counsel and the trial judge all shared the misapprehension that the deeming provision –

Then it says –

This is borne out by the exchange –

and that is the exchange that we have just been looking at.

KIEFEL CJ:   But he does not say that it had not occurred to me that an inference might be drawn about possessing – what inference might be drawn from possessing five kilos, nor could he in the face of the transcript.

MR GAME:   No, but if your Honour goes to page 804 ‑ ‑ ‑

KIEFEL CJ:   Sorry, page 8?

MR GAME:   Page 804 of the appeal book.

KIEFEL CJ:   Yes.

MR GAME:   Paragraph 4, and junior counsel put on an affidavit to the same effect:

this was an oversight on my part.  Had I recognised that section 11 did not apply to the charge, I believe I would not have acceded to the direction to the jury that intention was not in issue.

That evidence was accepted and acted on by the Court of Appeal and Justice Mazza and ‑ ‑ ‑

KIEFEL CJ:   These affidavits on appeal are not very good ideas, are they?

MR GAME:   They are not a very good idea but sometimes – I do not very ‑ ‑ ‑

KIEFEL CJ:   It should not really become a practice.

MR GAME:   Well, I do not do it very often but in this case because of the transcript something needed to be said about what was done.

KIEFEL CJ:   Yes, I understand.

MR GAME:   Justice Mitchell and Justice Mazza went through the concession and they accepted that that was the situation, so ‑ ‑ ‑

EDELMAN J:   There was no cross‑examination on either of the affidavits?

MR GAME:   No, no.

NETTLE J:   Mr Game, just back at page 392 in the exchange with the trial judge about the direction, at line 14, 15, “given the volume”, do you see that?

MR GAME:   Yes, your Honour.

NETTLE J:   Is that to be read as five kilograms or more than two grams?

MR GAME:   Well, on the face of it, it is ambiguous.  But we say when you read that with paragraph 4, what is in his head is that he would have to get over the deeming provision.

NETTLE J:   So more than two?

MR GAME:   Yes.  As I said, that everybody acted under that misapprehension was accepted and that it was not suggested – and it was accepted by Justices Mazza and Mitchell that it was not a forensic decision.

Now, the cases I wanted to refer to briefly, and really the only further cases I wanted to take your Honours to are the three relatively recent decisions of this Court, and firstly I wanted to take your Honours to Filippou 256 CLR 92 at paragraph 35 ‑ paragraph 15, I beg your pardon. The language that is used in Filippou at paragraph 15:

That leaves the proviso, which in terms is applicable to all three limbs of s 6(1). It directs that, even where error of the kind identified in any . . . if it is satisfied that the error has not been productive of a substantial miscarriage of justice. By “substantial miscarriage of justice” what is meant is that the possibility cannot be excluded beyond reasonable doubt that the appellant has been denied a chance of acquittal which was fairly open to him or her or that there was some other departure ‑

Then reference is made to Pollock and Baiada Poultry and Pollock uses the same language – and I will not take your Honours to it – at paragraph 70.  Then towards the bottom of that page:

But where, despite some other identified irregularity, the Court of Criminal Appeal is satisfied that the appellant has received a fair trial according to law and not otherwise been deprived of a chance of acquittal that was fairly open to him or her, once again the proviso will operate.

Now, we say those principles stand, they are of long standing, and that Weiss, properly understood, can be accommodated within them if the question is addressed to the Court’s satisfaction of guilt directed to the ultimate question about whether or not the person was deprived of a chance of acquittal; that is to say, whether it could have made some difference to the case.

If I can your Honours then briefly to Baiada Poultry, which precedes Baini.  In Baiada Poultry the passage I wanted to take your Honours to is a passage at 31.  The passage that we rely upon is:

It may well be right to observe that the proviso could seldom be applied in a case where, as here, the jury were not sufficiently directed of the need to be satisfied to the requisite standard of an element of the offence being considered . . . But it is important to emphasise the fundamental point made in Weiss: that the imposition of some taxonomy ‑

We agree that there should not be a taxonomy and we also agree that breaking the thing up into outcome and process is itself a taxonomy that may not necessarily be helpful because it may be part of one thing and part of the other.  But if I go then to paragraph 35 it says – sorry, paragraph 34 in the second sentence says:

The jury had not been required to consider either issue.

And these are about these directions:

Reference by the majority in the Court of Appeal to the jury’s verdict was therefore irrelevant to the majority’s consideration of whether the evidence at trial showed beyond reasonable doubt that it was reasonably practicable for Baiada to have given directions to DMP ‑

So, so too in our case, this case of Kalbasi, we would say the jury’s verdict is irrelevant and the irrelevance of it would have to have been addressed in a Weiss exercise because no directions were given on intention and because of the directions that were given on possession.  But then in paragraph 35, it is said:

The Court of Appeal could conclude (as the majority did) that it was proved beyond reasonable doubt that it was reasonably practicable –

“reasonably practicable” is the issue here:

for Baiada to take these steps only if it was not open to a jury to conclude to the contrary.

So that is satisfaction beyond reasonable doubt feeding into the question of inevitability of conviction and to that extent the principles can be brought together.  But it is not, as it were, anything like an exercise of the kind of the first leg of the appeal provision whether or not you are satisfied that the person is guilty in the sense that it was open to convict, which is the reverse idea.

BELL J:   Weiss does not suggest that that is the test.

MR GAME:   No, but ‑ ‑ ‑

BELL J:   I am just wondering slightly why we are going through this exercise when surely your point is, on any view of the proviso, you contend a trial at which the judge and counsel misapprehend the applicability of a provision such as section 11 means that there has been a flaw in the trial of a kind analogous to Handlen which cannot be dealt with by the proviso.  That is your contention and either it is good or it is bad.

MR GAME:   Yes, your Honour, but I do say – I put another argument about the question of intention, that if you are talking about this and lost the chance of acquittal, then we did lose the chance of acquittal if the question is so engaged.  So I am putting the case in both ways.  But what I am really saying is this.  If the proper question for the application of the proviso is as it was applied in the Western Australian Court of Appeal in Hughes and applied in this case, we say, is:  are we satisfied beyond reasonable doubt (a), is this a process case (b), if you lose both of those things, then you lose.  We say that that is wrong and if we say that Weiss says that, then we say Weiss is not consistent with the whole line of authorities, but we do not say that that is what Weiss says. 

So in one sense I am boxing at shadows but I am boxing at shadows because that is the issue that is kind of seized, we say, by the way in which this case was dealt with in the Court of Appeal ‑ faithful to an understanding of Weiss but it has not been uncommon in intermediate courts throughout the country at various points but has been abandoned, for example, in New South Wales some time ago.  At times Weiss was applied in that way, your Honours.

GAGELER J:   So how do you summarise the test in New South Wales now?

MR GAME:   Well, now the judges ask themselves, are we satisfied beyond reasonable doubt and did the person lose a chance of acquittal?  They ask themselves both questions.

BELL J:    Does it depend on the nature of the case and the error?  For example, you cite Pollock and Lindsay as cases that you see moving away from Weiss.  They are cases where the error was the failure to leave provocation or to leave it in a legally correct manner and one can see an error of that kind.  One can hardly have the appellate court making an assessment including of the issue of provocation, a peculiarly suited function to the jury.

In other words, the thing that Weiss tries to avoid is some test that moves away from a consideration of the motion of a substantial miscarriage of justice and it does not necessarily embrace a sporting theory of criminal justice.

MR GAME:   No, quite, but I do say this, your Honour.  It would be a serious mistake to only consider the significance of the error in the context of are we satisfied beyond a reasonable doubt about guilt because that could well operate unfairly and differentially in different cases and it would not produce, shall I say, a fair, firm focus on the nature of the error in any particular case.

BELL J:   But, what I am raising with you is that the emphasis on Weiss is looking at the case that is before you in the context of the notion of a substantial miscarriage of justice, recognising one cannot come up with an exhaustive list of categories.  So feeding back the fair chance of acquittal into every case regardless of the character of the error may not be the way to go.

MR GAME:   No, that is right.

BELL J:   That is what I am raising with you.

MR GAME:   If I could put it in a quite brutal way?  If you lift paragraph 41 of Weiss out and make that the test and ignore everything else then you are going to have problems in applying the proviso and that seems to be the way it has been approached in intermediate courts, including in Western Australia.

BELL J:   The answer may be to read the paragraphs that follow paragraph 41.

MR GAME:   Quite.  So, I may be boxing at shadows and talking to myself, but if you could excuse me I am going to ask to take your Honours to Baini.  Baini is a significant case even though it is about the Victorian provision.  If one looks at the following paragraphs – if we look at paragraph 30, one sees that the language – the reference to:

because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces ‑ ‑ ‑

Then it goes on to say:

To recognise that possibility does no more than acknowledge that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been “a substantial miscarriage of justice”.

Then it says the finding that a:

verdict was inevitable –

So, the Weiss question is actually framed as a slightly different question.  We would embrace that.

BELL J:   Should you start at paragraph 15 where the Court disavows that Weiss is relevant to Baini?

MR GAME:   No, your Honour, the whole reasoning kind of feeds into what was decided in Weiss.  If we go then to paragraph 32 – 32 says:

Thirdly, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open.  (Whether the verdict was open is the question presented by s 276(1)(a).)

Your Honour, one can say that with confidence regardless of the different wording of the provision because the wording of the provision, shall I say, sought to change the onus.  The critical thing about Baini is that in the context, the context is that you have the reversal of the onus which brings, shall I say, the substantial miscarriage of justice into the same territory as whether the verdict is safe.  So you cannot rely on the dichotomy about onuses when you engage in this analysis. 

The last bit of 33 - 33 is a reference to substantial miscarriage, if the appellate court concludes from its review of the record that conviction was inevitable.  Now, the footnotes there in these passages are to Weiss and to Fox v Percy.  This is redolent – I say it is not redolent, but in Filippou, the nature of the appeal in a judge alone trial was considered and the point about – and what emerges from Filippou is that what the significance about Fox v Percy is it is not a rehearing in the way that Fox v Percy is in an appeal, say, under section 75A of the Supreme Court Act (NSW) which is a rehearing but the Court still has to use the tools of assessing witnesses and so far as they can issues of this witness was or not credible and so forth.

Really what we – if one looks at Weiss in historical terms and, as I said, the lead up to it is really Justice McHugh’s judgment in Festa, the lead up is the changing landscape of the court assessing the evidence for itself.  The tests that we say should be applied are not as a taxonomy are the tests that were applied in Filippou, Baini and Baiada Poultry.  Satisfaction beyond reasonable doubt, shall I say, feeds into the question of the inevitability of conviction and that leaves the error centre stage. 

On the question of presupposition of trial we say that on the circumstances of this case, this is a case like Handlen, this is a case where it is a necessary presupposition of the trial that the jury are directed on the question of intention.  That is the crucial kind of aspect of the case.  This jury was only directed on possession and I have said what I want to say about what those directions established.

GAGELER J:   Mr Game, are you advocating for an approach similar to that which is taken in New South Wales?

MR GAME:   Pretty much, yes, your Honour.  But, what I say is this - what I do say is that not in every case does the court have to be satisfied beyond reasonable doubt on the question of guilt.

GAGELER J:   Because there will be – there are small errors that could be made.

MR GAME:   There will be things that engage – there will be things that do engage the provisions.  A wrong decision to admit some piece of evidence that turns out to be inconsequential will not – if one reads the argument in Weiss, Chief Justice Gleeson gave an example about an erroneous judgment that is then neutered by some evidence that the defendant gives in the trial.  I mean, that is an example but you may have a wrong decision and in Weiss the Court said, look, there is kind of an error in saying, well, this is just a little error that does not engage the provision.  It engages the provision but that does not necessarily mean that in every case you go on to determine whether or not you are satisfied beyond a reasonable doubt. 

As I said, if you make that the whole focus of the thing you have appeals dismissed where there are, shall I say, important errors and you have appeals upheld where there are small errors but weak cases so that the test – the test in Weiss is all directed to what I might call, shall I say, the Fox v Percy exercise of assessing the evidence for oneself – to satisfy oneself whether or not a verdict of guilty was inevitable.  That is how we see it.

GAGELER J:   Forgive my lack of detailed familiarity with how the Court of Criminal Appeal in New South Wales approaches the exercise, but does that court typically give any weight to any inferences to be drawn as to how the jury must have assessed the evidence or is it entirely ‑ ‑ ‑

MR GAME:   Not really.

GAGELER J:   It is looking just at the evidence.

MR GAME:   Yes, but if you ask both questions, I say in a way the court’s assessment really feeds into the could have made, but if you ask both questions then, as it were, that is giving the first question the role of a sine qua non.  But what I would say is that that test itself, it may be a sine qua non but it is not a sine qua non for every single case.

NETTLE J:   But only if the error is immaterial in a civic sense.

MR GAME:   That is right, that is correct, yes, that is correct.

NETTLE J:   Otherwise it will always be necessary.

MR GAME:   That is correct, yes, for the court to make its own assessment, yes, your Honour.

GAGELER J:   Where does it come from?  Where does this Weiss element come from?  Before Weiss, did you see it ‑ ‑ ‑

MR GAME:   The only place you will find it is in Justice – the only case you will find that, as far as we are aware, is in Justice McHugh’s judgment in Festa, but every part of that is directed towards this question about inevitability of conviction and it goes back to Mraz.  But what it says is that over the last 20 years cases such as Chief Justice Barwick’s judgment in Storey and Driscoll have emphasised the need for the court to assess the evidence for itself. 

What it is saying is the landscape has changed.  The landscape has changed in the common law with respect to civil appeals and that can be seen in Warren v Coombes and Fox v Percy.  The landscape has changed in the criminal law and one sees that in M v The Queen and Morris and that line of cases leading up to SKA more recently, requiring the court to assess the evidence for themselves.  But at the heart of this thing ultimately is you are asking whether or not the thing that happened in the trial caused the trial to miscarry.

KIEFEL CJ:   Does not the judgment in Weiss start with the courts having reiterated more recently that attention must be given to the text of statutes?

MR GAME:   Yes, that is true, your Honour, but if one asks oneself – funnily enough the only word that is missing in the Western Australian one is the word “actually”, but anyway, has a miscarriage of justice occurred?

KIEFEL CJ:   A substantial.

MR GAME:   A substantial miscarriage of justice.  But I am not offering up a taxonomy but I am saying that the court’s assessment of the evidence is not really directed to whether or not the court thinks the person is guilty.  It is directed towards whether or not the conviction should be overturned having regard to the strength of the evidence in the case and the nature of the error.

BELL J:   Is it not directed to the idea that one would not dismiss an appeal, there being some flaw in the conduct of the trial, as not being a substantial miscarriage of justice unless the court had conducted a review of the record which satisfied the court that guilt had been established?  That is not the end of the debate ‑ ‑ ‑

MR GAME:   Yes, that is right.

BELL J:   ‑ ‑ ‑ but it is the reason for that step and it gives content to the concept of what is a substantial miscarriage of justice distinguishing it from a miscarriage of justice in the third limb.

MR GAME:   Yes, your Honour, but what I say is that so understood it brings an additional discipline to the exercise.  It does not sideline the rest of the discipline.

EDELMAN J:   It is effectively putting aside fundamental errors at one end and trivial errors at the other.  It is effectively making transparent that which ought to be undertaken as part of the process of determining whether a conviction is inevitable such as to give rise to a substantial miscarriage of justice.

MR GAME:   Yes, quite.  I am getting old but judges used to say, “This is a very strong ground case.  We’ll exercise the proviso,” and that was the whole judgment on the proviso once upon a time.  It is saying “You’ve got to bring a discipline to analysing it”, but it is not foreclosing the things I am saying have to be addressed in any sense and it has been misunderstood in that way.

KIEFEL CJ:   Mr Game, you were asked about or you mentioned yourself the approach of the New South Wales Court of Criminal Appeal.  Are there any other courts that approach the question in Weiss in the way that that court does – intermediate appellate courts, I mean?

MR GAME:   I am not sure but I could research –

KIEFEL CJ:   No, I just wondered if you knew.

NETTLE J:   I rather think there is one a bit south of New South Wales that might be launched this summer.

MR GAME:   Yes, but the South Australian cases talk about outcome and process.  So they apply the same kind of approach as Western Australia.

KIEFEL CJ:   The Hughes line in Western Australia.

MR GAME:   Yes.  I just cannot remember what happens in Victoria.  To the extent that it is of interest, in the UK, after they amended the legislation and it became that the verdict was unsafe in 1990, they still applied a proviso test regardless of the fact that it was not even in the provision.  So it comes back into the discipline even if you want to ‑ ‑ ‑

GAGELER J:   When you say a proviso test, what do you mean?

MR GAME:   Of some kind.  They say how did it affect the trial?  Could it have affected the outcome is asked in the question about whether or not the verdict is unsafe, which was the provision that was introduced in 1995.

GAGELER J:   Do they have a Weiss‑type element?

MR GAME:   Not really, no, your Honour.

BELL J:    They did away with the proviso and they introduced a notion of whether or not the judgment appealed from is unsafe and that has led them to consider what constitutes an unsafe conviction.

MR GAME:   That is right.  What I am saying is the discipline has returned but there is something I am not sure of which is in 2008 there were proposed amendments.  They did not get through.  They changed it again and I am not sure what happened there but other common law jurisdictions

have versions of the proviso ‑ New Zealand, Canada.  The Americans have trivial error, which is a different ‑ ‑ ‑

GAGELER J:   Have you looked at New Zealand in particular?

MR GAME:   It has a proviso, yes. 

GAGELER J:   I think they initially adopted Weiss with a twist.

MR GAME:   Yes, could you just bear with me for one moment?  So yes, they do apply the proviso but they have an additional provision which is that the trial was a nullity.  Then they ask themselves are they sure the jury would without doubt have convicted had the matters not giving rise to the miscarriage not been present?  But I have not just checked the reference for that.

GAGELER J:   Is that in the statute or is that in the case law, that last element?

MR GAME:   So, that is in the case law.  The case here is a 1998 case and there is a Privy Council case as well, so I am not sure how they have interpreted Weiss but I do know that they have applied a proviso‑type provision, as have the Canadians.  I am sorry, I have the information in my hand but we have not put it on, but if required we could actually – all I am saying is the other jurisdictions, common law jurisdictions, have had to grapple with this problem and they have done so in various ways, looking at the significance of the error to that and in similar ways that we have, but I do not know of a Weiss discipline being imported into those cases.  I am sorry if that is not a complete answer, but that pretty much is – those are our submissions, if the Court pleases.

KIEFEL CJ:   Thank you, Mr Game.  Yes, Ms Forrester.

MS FORRESTER:   If it please your Honours, have your Honours had an opportunity to view the outline?

KIEFEL CJ:   Perhaps you could give us a few moments.

MS FORRESTER:   Thank you.

GAGELER J:   Are you supporting the Western Australian approach?

MS FORRESTER:   I am, your Honours.

NETTLE J:   The Hughes approach?

MS FORRESTER:   Yes.

KIEFEL CJ:   Yes, Ms Forrester.

MS FORRESTER:   Thank you, your Honour.  In relation to the argument that the respondent wishes to make, perhaps my outline is somewhat backwards in the way that I now propose to address it because clearly it is the impact on the conviction in this case that is the primary issue.  But it is necessary at the outset for the respondent to address the test that is to be applied and in that sense we do say that Hughes is appropriate in the context of this particular case.

There is an aspect of this appeal, in my respectful submission, that suggests that the original ground 2 on the appeal is being relitigated under the head of the application of the proviso.  In my submission, that should have been fairly put before this Court if it were going to be addressed in that way.  The reason that we put that is that it was never part of any submission in the Court below that it was open to the jury to convict on possession of something more than two grams of the quantity that was of the intended drugs as they were referred to in the context of the Court of Appeal. 

In the court below, the submission was made in the context of sampling.  And, your Honours can see that in the references to the Delphic submission that was put.  This is rejected by both the President, but more explicitly by their Honours Justices Mazza and Mitchell at page 872, paragraph 192, where they commence the analysis of the outcome aspect:

by rejecting the appellant’s submission that the defence case was even ‘delphically’ fought on the basis that the appellant possessed a small amount of methylamphetamine merely to sample it.

It is also necessary, at this point, to point out that while the appellant in the court below did not raise the distinction between outcome and process in the original submissions, in the reply the error that was said to have occurred was fundamentally put – was put as a flaw in the fundamental process of the court.  So, in effect, a process error and that is the reason why the Court of Appeal addressed the error in the way that they did in the context of this judgment.

In my submission, the appellant’s case before this Court is now run on the basis that their Honours should have done more and, yet, they were not asked at any point to consider the aspects that they are now being asked – it is now being suggested they should have covered.  That becomes very apparent when one goes through the judgment and actually extracts the way that – and looks, first of all, at the directions of the trial judge.

The trial judge’s directions are broken up into the three aspects of possession; first of all ‑ and this is a position that has come about in Western Australia because of a debate about what a person needs to know in a possession context ‑ do they need to know the identity of the prohibited drug or do they need to know that it is a prohibited drug.  So, there has been a recent spate of cases in Western Australia to that effect.

So, the possession element is in part broken up into, does an accused know that they are possessing a prohibited drug, and that is the first aspect that his Honour charged on.  The second is did the accused exercise the control and dominion or some other satisfaction of the definition of possession in the Misuse of Drugs Act, did they satisfy that control or dominion?  And thirdly, did they intend to exercise the control and dominion over the intended drugs.

The way that the submissions have been put before your Honours this morning separate those three and then suggest that there is some defect in the direction as to possession that fails to take into account or eschews the issue in relation to intention.  Intention to sell or supply can come about in two ways; first of all, the Krakouer sense or the way it should have been put which was without the deeming provision under section 11 or alternatively using section 11, if it is not an attempt case obviously.

That deeming provision is rebuttable.  Section 11 specifically states that that presumption can be rebutted on any given case by satisfaction that it should not apply and that is a frequent issue in cases involving possession with intent in Western Australia, that people who are charged with possession of a quantity greater than two grams seek to rebut that deeming provision either by making an argument before the jury or adducing evidence to that effect.

Then your Honours will see a reflection of that in this case with the expert evidence that was led from Detective Marron who gave evidence about the way in which drugs are sold, the quantities, the value and the meaning of the MSM that was found at the premises and matters of that nature and also the fact that there was some challenge earlier in the piece about the extent to which that expert evidence could go.  So, throughout these proceedings there have been issues and evidence going to intent.  The mere fact that counsel on both sides was under the misapprehension that section 11 applied in no way prevented an argument being put, at any point, that the jury should not accept it.

That is why, at the end of the trial, when his Honour came to ask if there was an issue, it was because defence counsel in their closing were still entitled to say, even if you find possession of the whole, you should not be satisfied that it was possession for the purposes of intent and this is why.  There was no evidence and that is what their Honours point out in the context of their judgment.  There was absolutely no evidence upon which a jury could make that finding but there was no argument put either and ‑ ‑ ‑

EDELMAN J:   If defence counsel’s answer had been, look, there is no need to direct on this because the charge here is under section 6(2), it is not under 6(1), the trial judge had agreed with that, would that be a fundamental error where one would not need to get into consideration of the proviso?

MS FORRESTER:   Yes, your Honour, but ‑ ‑ ‑

EDELMAN J: So, even if it were plainly clear beyond peradventure that the element had been satisfied the fact that everyone was labouring under the misapprehension that it was a section 6(2) case rather than a section 6(1) in my hypothetical example, that would be a Wilde‑type situation.

MS FORRESTER:   It would be a fundamental error, your Honour, but had counsel said anything to that effect everyone would have said, well, look at the indictment, it is a 6(1) case.  Of course, that error would have been corrected at that point and that is a difference between this and Krakouer is that that issue was squarely put prior to addresses and there was the opportunity to raise it with the members of the jury had counsel wanted to.

Now, it cannot be denied that there is evidence that counsel was under the misapprehension and that, at some point, fed into the response that he gave to the trial judge but it certainly is a submission put on the part of the respondent that counsel’s first response to his Honour’s query was that it was undeniable, that were he found in possession of that volume then his client would clearly be guilty of the completed offence – of the offence of attempted possession with intent to sell or supply. 

Now, their Honours ‑ and her Honour Justice McLure makes the point in the course of her reasons for decision that the concession, it is unclear, from her perspective whether the concession was made on the basis of the application of section 11 or not and that is at page 831, paragraph 12 of the appeal judgment.

KIEFEL CJ:   That is even accepting the evidence as her Honour appears to do.  There is no issue about the affidavits being accepted.

MS FORRESTER:   That is so.  The affidavit goes only so far to say that had counsel not been under that misapprehension then they would not have consented to the direction being given.  Well, that much seems obvious on the part of everybody in the court.  The court proceeded on the basis that they accepted that that was what had happened.  They did not accept it but it is at page 872, paragraph 188 that Justices Mazza and Mitchell indicate that they proceed on the basis that the acceptance was an oversight and not a deliberate forensic decision but that is as far as either of the judgments go in relation to that particular issue. 

When one goes back to the directions of the trial judge in relation to it, not once does his Honour say anything other than possession of the intended drugs.  He never references “part”, “some”, or anything of that nature, he is always talking about the full quantity and it appears a very large number of times throughout his directions in relation to possession.  He continually talks about possessing the real drugs, that is, the 4.981 kilograms at 627 or in possession or possess “the” intended drugs.  The State must prove beyond reasonable doubt the accused had knowledge, the thing he was in possession of was a prohibited drug.  This is extracted at paragraphs – part of the appellant’s submissions – sorry, at paragraph 78 to 81 where it is suggested that ‑ ‑ ‑

BELL J:   I am sorry, what page is that?

MS FORRESTER:   I am sorry, these are the appellant’s submissions, page 18.  I am sorry, on this appeal, your Honours.  At paragraph 81:

The directions to the jury left open the possibility that the jury could convict even if the appellant attempted to possess part of the drug.

There is nowhere – I beg your pardon, nowhere does his Honour leave that possibility open.

The only time that his Honour referred to part of the substance is in relation to the direction on intention, that is, if you are satisfied of possession, the final element is that he intended to sell or supply part of the whole.  That comes from the decision of Marker that is extracted in the respondent’s list of authorities, and that is a commonly used case in Western Australia in relation to these cases.  But the whole case was run on the basis of possession of the whole. 

Until this Court there has been no submission that it was open to the jury to convict on possession of something less than the whole but more than 2 grams, such that the directions in relation to possession somehow impacted upon the determination as to whether there was an intention to sell or supply.

So that is the first matter that we seek to raise in relation to the submissions that have now been made before you.  That was a significant part of the criticism of their Honours then going on to find, as they did, in the context of their judgments that the appellant was in possession of the whole of the quantity.  It is no mere coincidence that when their Honours do make the findings that they do – and this is in relation to both President McLure and Justices Mazza and Mitchell, for example, Justice McLure stated at page 835, paragraph 26:

The State case was confined to proving that the appellant was in control of all the intended drugs.

She goes on to talk about what was no part of the defence case.  Their Honours, Justices Mazza and Mitchell, in their finding at page 877 talk about possession of the whole and their satisfaction beyond reasonable doubt of that fact.  They say that also at 875, at paragraph 206:

we are satisfied beyond reasonable doubt that the appellant also exercised control.  We are further satisfied beyond reasonable doubt that he exercised control over the entire 4.981 kg of ‘methylamphetamine’ and not over some much smaller quantity consistent with a mere sample.

It is from that finding that they then go on to apply the proviso.  It is a reflection of the way that the case was run at all times in the court below and indeed in the Court of Appeal that it was either possession of the whole of the quantity or possession of a sample or a suggestion that he was there to sample the quantity and that was by reference to the request for a pipe on the listening device.

So, wherever their Honours indicate that they have been – having assessed the evidence as they are required to do in accordance with the proviso, they then specifically state on each occasion that they are satisfied of the possession of the whole.  It is in light of that aspect, coupled with the way in which this appeal was run in the Court of Appeal that the court then dealt with the process aspect, as they put it, in the way that they did.  In extracting Hughes there is no ignorance of the need to be satisfied that the error had no significance in the context of the trial.

That is no more than a reflection of the actual statutory text itself.  There was a debate towards the end of my learned friend’s submissions in relation to trivial errors or matters of that nature in the WA statutory text, the test under (3)(b) which would typically be the second part of the common form provision:

the conviction should be set aside because of a wrong decision on a question of law by the judge –

That is the first aspect of it, and then one goes on to consider substantial miscarriage.  So, even under (b), the trivial error is knocked out at that stage and one does not need to go on to consider substantial miscarriage of justice until it is something that may otherwise require the conviction to be set aside.  But when they consider Hughes at page 870, line 30, they specifically extract the part of Hughes which talks about:

whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury -

That cannot be overlooked, in my submission, in relation to the way in which their Honours then went on to consider both the outcome aspect, as they put it, and the process aspect.  My submission is that in relation to paragraphs 206 to 214 in particular which have been the focus of a great deal of the discussion in this case, the pivotal point in relation to the process aspect is in fact paragraph 213, and that is where their Honours make the finding that:

Although there was a misdirection . . . that does not mean that the trial was flawed in such a way as to preclude the application of the proviso - 

What then follows is a composite finding, in effect, wrapping up the consideration of the proviso.  The submission that the removal of the element of intention was analogous to a failure to leave a defence to a jury was rejected because there was no arguable defence.  That, in effect, is a consideration of the nature and effect of the error on this trial.

EDELMAN J:   Is it really correct to describe it as a “misdirection” as to an element?  One could understand in Krakouer how that is described as a misdirection as to an element because the element is referred to, it is described as a reversal of the onus, but here the only direction is just a direction to take the element out altogether.  Is that really a misdirection about the element?

MS FORRESTER:   There are varying ways, I accept, of describing it.  It can only be a misdirection in the context of this case.  The jury were directed they had to find that element beyond reasonable doubt but then were told that they could give it a tick, and they were of course given the jury aide which did not say give it a tick but at the time that they were told that they had the jury aide so one assumes that in the ordinary course that would be what they did, but it can only be a misdirection. 

I accept that it could also be seen as taking an element, in effect, away from the jury.  But in the context of a case where that element was never an issue and had never been an issue before the first trial, first appeal, second trial, second appeal there does seem to be – well, there is validity, in my submission, with the finding of their Honours that it was not such a fundamental flaw in this case. 

BELL J:   You have put against you that the case bears an analogy to Handlen where the judge and the parties all proceeded without an appreciation of criminal responsibility as defined under the Criminal Code of the Commonwealth.  Here, you have the judge and the Crown and the defence counsel all proceeding on an assumption that the fourth element was the subject of a statutory presumption.  How do you distinguish ‑ ‑ ‑

MS FORRESTER:   In Handlen – and Handlen is not the only case where this happened and, to some extent, Quartermaine is also the same sort of case – the offence of which the accused was convicted was not an offence known to the law in the sense that the pathway that the jury were told they were entitled to take to conviction did not lawfully exist.

BELL J:   Yes.

MS FORRESTER:   It is different in this case, in my submission, because it was not said to be in issue at all in this particular case. There was no evidence to the effect that it should have been an issue in the context of this case. I know that your Honour Justice Edelman raised the issue as to whether this is a section 6(2) case or a section 6(1) case and, in effect, 6(2) is always the statutory alternative to 6(1) and because the indictment is pleaded as possession with intent to sell or supply, if the jury are not satisfied of that secondary part, then they simply find someone guilty of possession.

So, it is perhaps the way the cases are run rather than the fact that it was directed as a 6(2) case.  It is always separated into possession and intention so that the jury can easily find to guilt on the alternative if that were open to them in any given case.  As I say, there are many cases that are run on lesser quantities over two grams where the presumption is attempted to be rebutted, sometimes successfully, sometimes not.

Your Honours, the outline fairly makes clear the respondents’ submission in relation to the way that Weiss should be interpreted in light of the way that the authorities subsequent to it have found.  The whole reason, in my submission, that Weiss said – the Court in Weiss said what it did is that there has been a tendency to try and define parameters for this test, to go outside the statutory language.  Weiss was a very timely reminder that that should not be done in any given case.  The succession of authorities that have used different language are using language appropriate to the case at hand, in my submission.

To suggest that in some circumstances an appellate court has – for an appellate court to have said, on an assessment of all of the evidence we are satisfied beyond reasonable doubt of the guilt of the accused may well in many circumstances be the equivalent of saying conviction was inevitable or that the accused has not lost a chance of acquittal.  I say that for this reason.  Inherent in the cases is also a caution that intermediate courts should not find their own pathway to guilt.  They should not – I cannot actually bring to mind the exact words right now but it really ‑ ‑ ‑

GORDON J:   The chain of reasoning. 

MS FORRESTER:   That is not the phrase that I was looking for, your Honour, but certainly is an equivalent to that which I was looking for.  The courts need to be satisfied that in the particular case the accused was guilty beyond reasonable doubt and it is important that one does not seek to draw the inferences through that process to get to that finding, that, in effect, it was inevitable that that is the pathway that the court gets to. 

I think it was Justice Nettle in Lindsay who mentioned that satisfaction to that standard is required and it is the intermediate court’s interpretation of what “beyond reasonable doubt” is in the cases that this terminology has been used and it is no more than that.

It is not a misunderstanding of Weiss.  It is not an attempt to revise Weiss.  It is simply consideration of the fundamental principles that were laid down in Weiss, applied appropriately to the cases that have subsequently come before the court.  Once the proviso is sought to be applied, the negative proposition will always come into play, in my submission.  It has to.  If the court is not satisfied beyond reasonable doubt then by its definition there will have been a substantial miscarriage of justice. 

In this particular case that is what the court has done.  They have applied the negative proposition as the first test.  Sometimes it can be done in different orders, but there is no prescribed order and it would be, in my submission, wrong to attempt to lay down any prescribed order.  The courts are not mistaken in the way that they are applying Weiss and there is no call, in my submission, for this Court to attempt to further define either it or its parameters.

GAGELER J:   Is there a difference between New South Wales and Western Australia in this respect?

MS FORRESTER:   In my submission, no.  The only difference in relation to New South Wales is that they have a particular provision – I believe it is 5F - in relation to the need for matters to have been raised at first instance in order to have been dealt with on appeal, or that there is an additional hurdle that counsel need to get over by having raised particular provisions before they can raise matters in the Court of Appeal.

BELL J:   Rule 4 of the Criminal Appeal Rules.

MS FORRESTER:   I am sorry, your Honour, yes.

GAGELER J:   Applying Hughes, would you ever get a situation in Western Australia where the Court of Appeal would say, “We are satisfied beyond reasonable doubt”, but there was a real chance of acquittal by the jury?

MS FORRESTER:   In my submission, no, and all the decisions of the Court of Appeal in Western Australia acknowledge that there is a need to be satisfied – the breakdown between the jury having to be satisfied versus the appellate court having to be satisfied, in my submission, across the States in relation to the application of the proviso is consistently that the intermediate courts tend to take that very high standard, so that there is no danger that the appellate court is exercising a discretion that a jury might otherwise have not, and that is the reason for the use of this terminology of “inevitability of acquittal” or “no lost chance inevitability of conviction” or “no lost chance of acquittal” because the court is attempting to explain that there is no prospect that a jury would have done differently to the intermediate court.

KIEFEL CJ:   You mean where it is used in cases subsequent to Weiss it is used in a way which confirms the outcome that the court has reached for itself?

MS FORRESTER:   Yes, your Honour, and emphasises ‑ ‑ ‑

KEANE J:   But sorry, is it not also making the point that it is not a case where the accused has been deprived of the verdict of the jury on an issue that is properly open, so that where the error is one of process – and I know that has blurred edges – but where the issue is one of process, the test of inevitability is really acknowledging that, unless it is inevitable, the decision was one for the jury.  It is about testing whether the error is truly one of process or not, because the proviso is not intended to deny the accused the verdict of a jury.

MS FORRESTER:   Entirely so, with respect, your Honour.

KEANE J:   But where there is either no issue or where the outcome is inevitable, you do not have a problem in denying the accused the verdict of the jury.

MS FORRESTER:   Yes, your Honour.

KEANE J:   That is why it is additional to the test of the appellate court having to satisfy itself of guilt.

MS FORRESTER:   There is a concern expressed in the cases – and it was also expressed by my learned friend in his submissions – that satisfaction beyond reasonable doubt, if that is all it is, risks usurping the role of the jury by the intermediate court making the finding themselves.  In my submission, the use of the terminology “inevitability of conviction” and “no lost chance of acquittal” is intended to portray the fact that the court has been satisfied and is not intending to usurp that role but is finding that there was no other way that this could have gone and therefore we are, in effect, verifying that the jury was right and that the accused had a fair trial by jury.

EDELMAN J:   How does that approach deal then with the possibility of dissenting judgments in an intermediate court of appeal?  In other words, if one judge was satisfied beyond reasonable doubt in his or her mind that conviction would occur, but in a dissenting judgment, can the first judge say that that dissenting judgment is a view that could reasonably have been formed and could be a view that could have been taken by the jury?

MS FORRESTER:   That is an issue, your Honour, and would be an issue, but I cannot actually contemplate a case where that has occurred ‑ the majority of the determinations where that is an issue.  Because it is not the sole issue, or it is not the test that has not proved the delineating factor, but where there are dissents it is largely around whether it is appropriate for the appellate court to make an assessment on the whole of the evidence because of the availability of the material, the natural limitations issue, and whether or not the court, in particular this Court, has been in a position to make an assessment on the entirety of the record. 

But clearly that would be an issue, were it to arise.  In my recollection of the cases, I am not actually aware of one where that has occurred.  It may be because it would cause precisely that dilemma.  Intermediate courts are aware of the need to have that degree of satisfaction before making the finding and applying the proviso.  Unless I can assist your Honours further, the State relies upon its submissions and the outline.

KIEFEL CJ:   Thank you, Ms Forrester.

MR GAME:   If the Court pleases.  I hope I did not understate the case but I am not sure that every New South Wales case speaks with one voice about the test, but what I had in mind is a case called Carney and Cambey (2011) 217 A Crim R 201, where Justice Whealy expressed the test in the way that I put it to you before. If the “beyond reasonable doubt” test means there is no other way the case could have gone then we are furiously in agreement, in one sense.

I wanted to say a couple of other things.  First of all, it is said – and it may not matter – that we never put the submission about possession.  Incidentally, I am not trying to ventilate ground 2.  I am just trying to argue about where the possession directions take you.  In our reply in the court below – those submissions are at pages 811 and following - paragraph 7, 812 and paragraphs 19 and 20, we put something that is very close to that which we are putting to you today – 7, 19 and 20.

It is said against us that in our reply we brought the process outcome dichotomy into - I would submit that it is not really fair.  What we brought into it was Quartermaine at paragraph 12 and you see that at page 813.  Now, there is a significant question of statutory interpretation that needs to be considered and it is this, your Honours. 

If you could go to section 30 of the Western Australian Act, there are really only two differences with the common form.  One is the word “actually” appearing under “substantial miscarriage of justice actually” but the Crown put to you in respect of (b) that a trivial error would not get through.  But that is not so, in our submission, and Weiss would lead you to that conclusion at least.  All that has happened is this.  The common form provision said:

should be set aside because of a wrong decision on a question of law –

or that on any other ground:

there was a miscarriage of justice.

The common form does not really say that the words “conviction” should be set aside or linked to miscarriage of justice per se but apart from that glitch, it is a very small one, there is no difference.  So, the words “the conviction should be set aside” do not knock out what we would describe as trivial errors.  So what we are saying is AK says they are to be treated as the same and we say that is the case and the words in (b) do not change – the beginning of (b) does not change anything. 

BELL J:   What do you say to the State’s submission that it was open to rebut by evidence or, indeed, simply in submission to invite the jury to consider that the State had not established the requisite intent notwithstanding the presumption?

MR GAME:   Well, your Honour, if you read the exchange and then you read the affidavit, the effect of it is the misunderstanding and the misunderstanding produces in the mind of the defence lawyer an insuperable barrier to the issue.  He is going to have to go into evidence or he is going to have to somehow address it in some – so, he has a, kind of ‑ if he wanted to do it he would have a massive forensic problem.

But the other thing is this.  On his understanding, and I said this before, he cannot concede any possession whereas if he understands the provision then he can.  The other thing is this, that it is said against us that Justice McLure said that the position was not clear but all she said at 831 was the “exchange is equivocal” and the exchange on its own is equivocal.  It is a question of what…..exchange in the affidavit and you saw at 872 that in the joint judgment they accepted that the thing was done as a misapprehension. 

I think I said this before:  we are not trying to reargue ground 2.  We are just arguing where do the directions on possession take you, and that was the whole point of that argument.  Now, those are our submissions, if the Court pleases.

KIEFEL CJ:   Thank you, Mr Game.  The Court reserves its decision in this matter and adjourns until 9.45 am tomorrow for pronouncement of orders and otherwise until 10.15 am.

AT 12.38 PM THE MATTER WAS ADJOURNED