Kalbasi v The State of Western Australia

[2017] HCATrans 113

[2017] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth   No P62 of 2016

B e t w e e n -

POUYAN KALBASI

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GAGELER J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 12 MAY 2017, AT 11.30 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC:   May it please your Honours, I appear with my learned friend, MR P. McQUEEN for the applicant.  (instructed by Lavan)

MR S. VANDONGEN, SC:   May it please the Court, I appear with my learned friend, MS K.C. COOK for the respondent.  (instructed by Director of Public Prosecutions (WA))

GAGELER J:   Yes, thank you.

MR WALKER:   Your Honours, at page 122 of the application book in that section of the majority’s reasons which is headed on a previous page “Analysis – the ‘process’ aspect”, one finds the way in which a conclusion is framed which, in our submission, bespeaks error as to the proper approach to the possible application of the proviso upon a relevant error being made out.  It also happens conveniently in paragraph 214, the third sentence commencing “Once the appellant was found to have possessed the 4.981 kg”.  It also contains by way of conclusion, encapsulating much that has gone before, the way in which this case provides an appropriate vehicle for the Court to correct the misunderstanding of what I will call Weiss. 

In this case, the error was of the kind frankly displayed by the evidence of trial counsel and one might add, I suppose, by the words in terms of direction of the trial judge where there was a complete mistake made as to an essential element of the offence, namely, the requisite mercantile or commercial intention, possession with intention to sell, et cetera.

The case provides a proper vehicle because the way in which that error if corrected reveals a lost chance of acquittal the proper approach to Weiss as we put it emerged or emerges and should have impressed the Court of Appeal by reference to the emphasis in the Crown case on possession of the whole amount. 

Now, I do not mean that the Crown did not press for and, indeed, successfully obtain directions concerning the possibility to possess the whole by doing something with part.  But the case was possession of the whole and, thus, the requisite element upon which there had been the frank misdirection concerned intention as to the whole. 

This was a case where, as your Honours know, the pivotal issue, therefore, of possession and intention having to travel with possession was raised before a jury that had pressed upon them what might be called the subsidiary to a point of being disconnected relation of our client with the consignment owned by another, with obviously mercantile ambitions of his own.

That is where, in our submission, the over‑abstracted division of the Weiss process into outcome and process, as their Honours did in the Court of Appeal, has mistaken the proper approach to be taken which proceeds of course simply according to the statutory requirement.  Process and outcome are concepts ‑ ‑ ‑

EDELMAN J:   Had the Court of Appeal reasoned in a way which did not draw a divide between outcome and process and did not treat Weiss as a conclusion or conclusory statement, how do you say that the conviction might not have then occurred or they might not have found that there was a substantial miscarriage of justice?

MR WALKER:   Because the case being against us of possession of the whole and, therefore, required intention for the whole, in our submission, as the various directions about which we complain concerning possession - your Honours will recall the array of variance that one finds in the direction culminating in the doing something with - because they obviously left open the possibility that a jury might not be satisfied of possession of the whole on the basis of some kind of dealing of a transient kind, a subordinate kind, with part and that would make extremely plausible and obviously not inevitable, to use the term of art, the possibility that they would have declined but for the error, to have found the requisite intention for the possessed whole.

EDELMAN J:   What then do you say about paragraph 27 of the President’s reasons that it was no part of the defence case that the appellant’s conduct was consistent with an intention only to purchase a small quantity, in other words, that it was run as an all or nothing case?

MR WALKER:   With respect, that is an observation that displays rather than dispels error, that is, it makes a conclusion about what, had there not been the error - and this is the proper form of Weiss analysis - were the chances of acquittal.  There is no question that but for the error there would have been the need to direct attention to the intention that accompanied possession of that which the Crown case attributed to my client which was the whole.  It is for those reasons, in our submission, that that observation simply, as it were – it certainly does not consider the chance of acquittal as I have just explained it.  It, as it were, makes an assumption ‑ ‑ ‑

NETTLE J:   It illustrates the chance you have lost - they might not have been satisfied of the intent of the whole.

MR WALKER:   Quite so, the twinned and simultaneously necessary concepts of possession and intention are simply assumed away in that response, as is that sentence to which we have drawn attention in the majority reasons at page 122, paragraph 214.  That last sentence, in our

submission, is framed not by reference to the question of whether it would have been inevitable and thus misses the point of losing a chance - I need hardly remind your Honours that that has been and we respectfully submit still is to put it very controversially in the working out of the operation of these common form provisos according to what is actually not helpfully called Weis”. 

It is actually not helpfully called Weiss because Weiss itself, in the critical passages, leaves open possibilities.  It certainly gives indications of what might be called the tendency proviso in its operation in cases other than the case before the Court in that authority.  In the working out subsequently, in our submission, there has been present danger, which this Court has, we accept, already warned against, of turning the negative proposition – negative in the sense that it is necessary but not sufficient - into something which is the whole of the inquiry which, of course, is a very dangerous error because it turns “necessary but not sufficient” into “sufficient” or “dispositive” perhaps. 

In our submission, notwithstanding the remarks about process and outcome as what I will call conceptual categories that is really what has happened in this case.  The examination of the record, satisfaction by the judges of proof beyond reasonable doubt and the decision of the proviso accordingly, that is not what it means to ask was conviction inevitable even had the error not occurred because that is something which by way of illustration in paragraph 86 of Lindsay your Honour Justice Nettle explained in terms which require the strength or extremity of that conclusion before the Court can reach the required satisfaction that there has been no substantial miscarriage of justice, the premise being that there is obviously a highly significant error when effectively an onus has been reversed or an issue has been withdrawn. 

It is for those reasons, in our submission, that this case provides a very good vehicle to test and to make clear in a way that regrettably is not as clear as it might presently be that proper approach when an error of such magnitude has occurred in this case occurs during a criminal trial which leads to a conviction.

GAGELER J:   So that goes to your proposed ground 1.  Is there anything you would wish to add to what you have put in writing about grounds 2 and 3?

MR WALKER:   No, there is not.  No, there is not and those are our submissions.

GAGELER J:   Thank you.  Mr Vandongen.

MR VANDONGEN:   Thank you, your Honours.  In our submission, it appears that what the applicant is raising in relation to ground 1 and 2 issues in the main are firstly, whether or not the Court of Appeal applied the proviso based only upon proof beyond reasonable doubt of the guilt of the applicant and, secondly, whether or not it failed to consider the possible effect of the wrong direction on the verdict. 

In relation to the second aspect, can I just correct one submission which appears to loom large in the applicant’s submission made orally and that is the contention that in a case such as this in which the State case was that the applicant possessed the whole of the 5‑odd kilograms of methylamphetamine, the State was then required to prove an intention with respect to all of that.  That, with respect, is not the law in Western Australia.

My learned friends have referred to a decision of the Court of Appeal in Marker.  There is also another decision of the Court of Appeal in which five members of the Court of Criminal Appeal sat – Langridge - which determined authoritatively for the purposes of this State that there was no requirement to prove beyond reasonable doubt that the person intended to sell or supply the whole of the methylamphetamine that was possessed and you can see that aspect of the law coming through a little bit in the directions that were given by his Honour at application book page 19 at point 40.  Now, whilst that, of course, is the particular part of the direction that constitutes the error you will see there that his Honour said:

that the accused intended to sell or supply the prohibited drug or any part of it to another -

consistent with longstanding authority of the Court of Criminal Appeal as it then was in this State.  Can I then deal with the question of whether the proviso was correctly applied in this case by taking your Honours to appeal book 115 and the purpose of doing this, your Honours, is to submit that the way in which the Court of Appeal dealt with the proviso in this case was very much shaped by the arguments that were put by the parties below so that the process and outcome way in which they dealt with it was shaped by not only the State’s submissions but also by the appellant’s submissions. 

The State’s submissions on the proviso are summarised at paragraphs 181 and 182 is where the court sets out where the appellant dealt with the State’s submission which was, in essence, that given the State case was that the applicant possessed all of the drugs, it was inconceivable that he did not have an intention to sell or supply at least part of it.  The way in which the applicant dealt with it is set out at paragraph 182.

Then the Court of Appeal dealt with the applicant’s particular submissions on why the proviso ought not be applied at application book 117 at paragraphs 189 through to 191 and it is important to note that even on this application for special leave the court’s formulation of the issues as framed by the appellant’s…..is not challenged.  So, the court’s summary of the way in which the applicant sought to invoke – sorry, sought not to invoke the proviso was shaped by the submissions that were put at paragraphs 189 and 190 in particular. 

When one looks at the complaints that the Court of Appeal concluded beyond reasonable doubt the guilt of the applicant and, therefore, concluded that the proviso ought be invoked that needs to be looked at in the context of paragraph 190, in particular, because that was, as the Court of Appeal said, in substance, what the submission was on behalf of the applicants.  In relation to the so‑called process part of it see the applicant’s submissions at paragraph 189.  Now, it is important when looking at paragraph 189 to understand perhaps where those two points came from.  The first point:

the jury returned a verdict of guilty without having considered whether the particular crime with which the appellant was charged was committed by him –

comes, it seems, directly from a case cited by the appellant, a case of Quartermaine which you will see referred to at application book 120 at paragraph 208.  That particular case was concerned with whether or not the proviso could be invoked in a case in which, in effect, the applicant was shown to have been convicted of a charge she had not been charged with.  That echoes the submission that was put on behalf of the appellant in paragraph 189.

The second argument that was put at paragraph 189 perhaps has echoes in what was said by this Court in Baiada, that is, that it was analogous to the removal of the defence.  Of course, in Baiada this Court concluded that that is what occurred there but that was the argument in Baiada. 

You then come, with that in mind, that that is the way the issues were framed, to look at the way in which the Court of Appeal dealt with those issues, firstly, the outcome aspect and in the context of a submission that the appellant’s guilt had not been proven beyond reasonable doubt and that analysis commences at paragraph 192 of the judgment of the court below and concludes at paragraph 206 with a conclusion which we say is not surprising in light of the way the issue is framed that his guilt had been proved beyond reasonable doubt, that is both the elements of possession and intent.

So what we say is that they were addressing a particular argument that was put by the appellant on the application of the proviso.  It is important to note there in terms of the issue of whether or not the court dealt with the potential effect of the error on the jury’s verdict that was not an argument that was put in that context according to the summary of the Court of Appeal. 

It also needs to be borne in mind when considering the court’s conclusion that his guilt was proven beyond reasonable doubt that at the commencement of that analysis the Court of Appeal expressly rejected the Delphic suggestion that was made by the appellant’s counsel in the court below that the appellant possessed only a small quantity of methylamphetamine as opposed to the entire quantity.  You can see the emphatic rejection of that at paragraphs 192 and 193 of the judgment below.

In essence, the majority concluded that there was no evidence to support that assertion and that the only hook upon which that assertion was made was, as counsel below put it, a Delphic suggestion in closing addresses.  In relation to the process aspect and, perhaps, before heading to that, one of the complaints made, I think, in writing about the court’s application of the proviso is that it did not recognise that proof beyond reasonable doubt was not a sufficient conclusion for the application of the proviso and that it was required to go on to deal with whether or not it had an effect on the jury’s verdict. 

Well, at the conclusion of paragraph 206 and in paragraph 207, the fact that they turned to deal with the “process” aspect, as they put it, of the proviso, implicitly shows a recognition by the court that proof beyond reasonable doubt and satisfaction by the Court of Appeal of that fact was not a sufficient basis to invoke the proviso.  So it is implicit in that approach that they understood that that was not something which was open to them to do.

In support of that, if your Honours look at paragraphs 216 of the judgment below at application book 122 - and I accept that this is dealing with it in a different context but it appears immediately after the court deals with the proviso in relation to ground 1 in the court below - in dealing with ground 2, it expressly says that:

the proviso would have been applied because any error was trivial and could not reasonably have affected the outcome.

So, it is clear, in our submission, the Court of Appeal understood clearly that it was not sufficient for it to conclude merely proof beyond reasonable doubt before invocation of the proviso.

EDELMAN J:   But is that saying that proof beyond reasonable doubt to the Court of Appeal is not sufficient because the additional question is - the only additional question that is to be asked separately from that is a process question in the extreme senses that are referred to in cases like Quartermaine?

MR VANDONGEN:   No, no.  That is why I say in this particular case it needs to be borne in mind particularly that the way in which the argument was framed was the way in which I took your Honours to previously.  So, in terms of the process aspect of the proviso, that was then dealt with at paragraphs 208 onwards and it is an answer to, in two respects – sorry, an answer to both of the respects in which the appellant sought to invoke the proviso in the process aspect, if you like. 

When you look at the way in which the process aspect was sought to be invoked by the appellant they are, in truth, two arguments about whether or not it could be concluded that the erroneous direction did not have an effect on the outcome in a sense on the jury’s verdict because they were concerned with whether or not, in essence, a defence was not left.  If a defence had not been left then it would necessarily follow that that would have an effect on the - that is a defence that is open, would have an effect on a jury’s conclusion.

So, at paragraphs 208 onwards, the court deals expressly with the two arguments that were made on behalf of the appellant in the Court of Appeal…..  In essence, at paragraphs 213 and 214 a conclusion there that the appellant was not deprived the chance of an acquittal or to put it another way that the error did not affect the verdict, did not affect the outcome, again, against the background of a case in which the appellant’s case was, at trial, “I had nothing to do with the drugs whatsoever”, in other words, “I did not have any possession of any of the drugs”.

In light of the way in which the case was run by the appellant and in light of the way in which the appellant chose to deal with the invocation of the proviso by the State court below, in our submission the way in which the court ultimately dealt with it does not bespeak the error the appellant now complains of.

Your Honours, in light of the fact that my learned friend does not seek to make oral submissions in relation to grounds 2 or 3, I will rely upon my written submissions.  If your Honours please, they are my submissions.

GAGELER J:   Thank you, Mr Vandongen.  Mr Walker.

MR WALKER:   Your Honours, the passages that my learned friend has gone to, in particular from 208 to 216, simply do not record that which my learned friend suggests is its substantive character, namely, an investigation of the possibility of the jury having been misled by reason of the error or to put it another and proper way, investigation of whether a real chance had been lost.

NETTLE J:   Mr Walker, could you focus hard on paragraph 214.

MR WALKER:   Yes.

NETTLE J:   If it is accepted that the jury must have been persuaded beyond reasonable doubt that the accused possessed the drug, why would it not have followed as day followed night that they would have been satisfied that he possessed it to trade?

MR WALKER:   Because on the very directions that we have drawn to attention and to which our learned friend has referred, that possession of the whole could, it might be reasoned, have been made out by a very much smaller – dealing with a very much smaller part of the whole.

NETTLE J:   Yes.

MR WALKER:   As we have argued in writing in‑chief, page 151, paragraphs 30 and 31 and 32, in particular, bereft of a proper direction as to intention, and that is the error, the jury – there is a chance that the jury could have reasoned he did only that inconsequential thing with only that small part of the drug, that does not support an inference beyond reasonable doubt of the requisite intention for that which we are persuaded he may thereby have possessed.

NETTLE J:   You say that notwithstanding that the defence was all or nothing.

MR WALKER:   Your Honour, the defence all or nothing was in a trial where everybody made the mistake concerning the operation of section 11 in an attempt case.

NETTLE J:   No question there was a mistake and it was a serious one but when we come to 214 ‑ ‑ ‑

MR WALKER:   Yes, I am sorry, I should have just said yes.  The answer to your Honour’s question is I say that notwithstanding the all or nothing aspect of the mistaken basis upon which the trial was run.

NETTLE J:   Because it is conceivable, you say, that notwithstanding that defence the jury might still have reason for itself if properly directed that he possessed only little.

MR WALKER:   Yes, on intention that they have to find the intention with respect to that which they have been satisfied there was possession.  The Crown certainly had as part of its case possession of the whole.  That leaves as one of the possibilities - and we address this in 30, 31, 32 – an intention with respect to the whole but it has also a range of reducing possibilities and as the amount possessed decreases, as we have tried to point out in the second sentence of our paragraph 31 at line 20 on page 151, as that amount decreases chances come into existence by which one could have resisted - the jury may not have been satisfied at this stage - possibilities that counter the necessary inevitability.  That is what this case raises and, in our submission, appropriately as a vehicle.  May it please the Court.

GAGELER J:   There will be a grant of special leave to appeal in this matter limited to ground 1.  The Court will now adjourn.

MR WALKER:   May it please the Court.

GAGELER J:   The Court will now adjourn.

AT 11.59 AM THE MATTER WAS ADJOURNED