HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJPOUYAN KALBASI APPELLANT
AND
THE STATE OF WESTERN AUSTRALIA RESPONDENT
Kalbasi v Western Australia
[2018] HCA 7
14 March 2018
P21/2017
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
T A Game SC with P McQueen and G E L Huxley for the appellant (instructed by Lavan)
A L Forrester SC with K C Cook for the respondent (instructed by Director of Public Prosecutions (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Kalbasi v Western Australia
Criminal law – Appeal against conviction – Application of proviso – Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another – Where police replaced prohibited drug with another substance – Where trial judge and counsel erroneously assumed s 11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another – Where jury erroneously directed that proof of possession of substitute "drugs" would suffice to prove intention to sell or supply to another – Where intention not otherwise live issue at trial – Where sole issue at trial was appellant's possession of substitute "drugs" – Where prosecution concedes erroneous direction as to intention but contends "no substantial miscarriage of justice has occurred" – Whether "no substantial miscarriage of justice has occurred" – Whether misdirection precluded application of proviso.
Words and phrases – "deemed intent", "error of outcome", "error of process", "fundamental defect", "fundamental error", "fundamentally flawed", "inevitability of result", "intention", "loss of a fair or real chance of acquittal", "miscarriage of justice", "negative proposition", "proviso", "reasonable jury", "substantial miscarriage of justice", "this jury".
Criminal Appeals Act 2004 (WA), s 30.
Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11, 33(1), 34.
KIEFEL CJ, BELL, KEANE AND GORDON JJ.
Introduction
Section 6(1)(a) of the Misuse of Drugs Act 1981 (WA) ("the MDA") makes it an offence to be in possession of prohibited drugs with intent to sell or supply them to another. Section 11 of the MDA operates to deem a person who is in possession of a specified quantity of a prohibited drug, subject to proof to the contrary, to have it in possession with intent to sell or supply to another. In the case of methylamphetamine, a prohibited drug, the quantity which enlivens the operation of s 11 is two grams. In Krakouer v The Queen[1] it was held that s 11 has no application on the prosecution of a charge of attempted possession of a prohibited drug.
The appellant was tried in the District Court of Western Australia (Stevenson DCJ and a jury) on an indictment that charged him with attempting to supply a prohibited drug, methylamphetamine, with intent to sell…
Continue reading Kalbasi v Western Australia
Sign in free to access the full text
Details
- AGLC
- Kalbasi v Western Australia [2018] HCA 7
- Case
- [2018] HCA 7
- Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Mr Kalbasi against a conviction for attempting to possess a prohibited drug with intent to sell or supply. The dispute arose from the trial judge's directions to the jury, which erroneously assumed that proof of possession of a substitute substance would suffice to prove the appellant's intention to sell or supply. This assumption stemmed from a misinterpretation of section 11 of the Misuse of Drugs Act 1981 (WA), leading to a situation where the crucial element of intent was effectively removed from the jury's consideration.
The central legal issue before the High Court was whether a substantial miscarriage of justice had occurred, thereby precluding the application of the statutory proviso (s 30(4) of the Criminal Appeals Act). This involved determining if the erroneous direction regarding the intention to sell or supply, coupled with the jury's focus solely on the appellant's possession of the substitute substance, deprived the appellant of a fair chance of acquittal. The Court was required to assess whether the trial had, in substance, proceeded on the basis of a different offence than that for which the appellant was indicted.
The Court reasoned that a substantial miscarriage of justice occurs when an accused is not truly tried for the offence for which they were indicted. In this case, the trial judge's direction, based on a mistaken understanding of the law and an incorrect concession by counsel, removed the element of intent to sell or supply from the jury's purview. This meant the jury was not tasked with determining guilt for the charged offence, but rather for a lesser offence. Despite the strong circumstantial evidence presented by the prosecution, the Court concluded that it was open for a jury, properly directed, to reach a contrary conclusion regarding the appellant's guilt. Therefore, the erroneous direction constituted a fundamental error and a serious departure from the requirements of a fair trial.
Consequently, the High Court allowed the appeal, quashed the conviction, set aside the sentence, and ordered a new trial.
The central legal issue before the High Court was whether a substantial miscarriage of justice had occurred, thereby precluding the application of the statutory proviso (s 30(4) of the Criminal Appeals Act). This involved determining if the erroneous direction regarding the intention to sell or supply, coupled with the jury's focus solely on the appellant's possession of the substitute substance, deprived the appellant of a fair chance of acquittal. The Court was required to assess whether the trial had, in substance, proceeded on the basis of a different offence than that for which the appellant was indicted.
The Court reasoned that a substantial miscarriage of justice occurs when an accused is not truly tried for the offence for which they were indicted. In this case, the trial judge's direction, based on a mistaken understanding of the law and an incorrect concession by counsel, removed the element of intent to sell or supply from the jury's purview. This meant the jury was not tasked with determining guilt for the charged offence, but rather for a lesser offence. Despite the strong circumstantial evidence presented by the prosecution, the Court concluded that it was open for a jury, properly directed, to reach a contrary conclusion regarding the appellant's guilt. Therefore, the erroneous direction constituted a fundamental error and a serious departure from the requirements of a fair trial.
Consequently, the High Court allowed the appeal, quashed the conviction, set aside the sentence, and ordered a new trial.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Section 30(4) of the Criminal Appeals Act provides that, despite s 30(3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred. Section 30(4) is the Western Australian statutory form of the common form proviso.The facts On 12 November 2010, police executed a search warrant at a freight company's premises in Sydney. Therein they located a cardboard box for consignment to the freight company's office in Perth, with a delivery instruction endorsed on the consignment note to call "James Walker" on telephone number 0403-717-731 ("the 731 number"). Inside the cardboard box were two padlocked yellow plastic toolboxes, each containing five sealed plastic bags of methylamphetamine. Subsequent analysis revealed that the total weight of the methylamphetamine was 4.981 kilograms with a purity of 84 percent and a potential street value of up to $5 million. On 14 November 2010, police took the cardboard box to Perth and replaced the packages of methylamphetamine with packages of rock salt. The box was then reconstructed with a listening device concealed inside it. On 15 November 2010, police observed one Matthew David Lothian ("Lothian") attempt to collect the cardboard box from the freight company's premises in Perth. By arrangement with police, the freight company told Lothian that he should return the following day. Police later followed Lothian and watched him enter a house in Falstaff Crescent, Spearwood ("the Falstaff Crescent premises"). They also observed him making two telephone calls from a public telephone box. On 16 November 2010, police observed Lothian driving a car towards the freight company's premises. On his way there, the car ran out of petrol and so he took a taxi for the remainder of the journey. He arrived at the freight company's premises by taxi at about 2:15 pm, and was there seen to be using a white mobile telephone. He took delivery of the cardboard box and placed it in the back of the taxi. From there, he travelled in the taxi to a petrol station, where he purchased a jerry can of fuel, and then back to the car to refuel it. At about 3:09 pm, Lothian arrived in the car at the Falstaff Crescent premises and, at around 3:16 pm, he was seen by undercover police carrying the cardboard box inside the premises. Granted, as the State submitted, a trial judge is not required to direct a jury on an element of an offence that is not in issue[154], and, in one sense, the element of intent to sell or supply was not in issue in this case due to defence counsel's erroneous "concession" that the s 11 presumption applied. But here that is no answer. Counsel cannot concede a matter of law disadvantageous to the accused[155], especially when the "concession" is the consequence of error[156]. Saying that a trial judge is required to direct a jury on only those elements of an offence that are in issue does not mean that defence counsel's mistaken view of the law relieves the judge of his or her responsibility to direct the jury correctly[157]. Rather, as the plurality stated in KBT v The Queen[158]:"There are occasions when [the proviso] is properly applied where a point was not taken at the trial because, for example, it was not in issue or there was some forensic advantage to be gained by not raising it. In cases of that kind, [the proviso] is applied because, having regard to the defence case, the accused was not deprived of a chance of acquittal that was fairly open, that being the accepted test for the application of [the proviso]. [But], if the appellant was deprived of a chance of that kind, the fact that no complaint was made at trial is irrelevant."[154]See Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at 104 [28] per French CJ, Gummow, Hayne and Crennan JJ. See also Holland v The Queen (1993) 67 ALJR 946 at 951 per Mason CJ, Brennan, Deane and Toohey JJ; 117 ALR 193 at 200; [1993] HCA 43.[155]See Stokes & Difford (1990) 51 A Crim R 25 at 32 per Hunt J (Wood J and McInerney J agreeing at 45); BRS v The Queen (1997) 191 CLR 275 at 305 per McHugh J; KBT v The Queen (1997) 191 CLR 417 at 423-424 per Brennan CJ, Toohey, Gaudron and Gummow JJ, 431 per Kirby J; [1997] HCA 54; Fingleton v The Queen (2005) 227 CLR 166 at 198-199 [81]-[84] per McHugh J; [2005] HCA 34.[156]See and compare Gilbert v The Queen (2000) 201 CLR 414 at 422-423 [21] per Gleeson CJ and Gummow J, 441-442 [102]-[103] per Callinan J; Handlen v The Queen (2011) 245 CLR 282 at 297-298 [45]-[47] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. See also Re Knowles [1984] VR 751 at 770; TKWJ v The Queen (2002) 212 CLR 124 at 151-152 [84] per McHugh J; [2002] HCA 46.[157]See and compare Andrews v The Queen (1968) 126 CLR 198 at 207-210; [1968] HCA 84; Quartermaine v The Queen (1980) 143 CLR 595 at 600-601 per Gibbs J (Stephen J and Murphy J agreeing at 602, 613).[158](1997) 191 CLR 417 at 423-424 per Brennan CJ, Toohey, Gaudron and Gummow JJ. See and compare Simic v The Queen (1980) 144 CLR 319 at 330-333; [1980] HCA 25.
Evidence
Evidence Before The Court
Relevantly, s 6(1)(a) of the MDA makes it an offence for a person to possess a prohibited drug with intent to sell or supply it to another. The offence is punishable by a fine not exceeding $100,000 or imprisonment for a term not exceeding 25 years, or both[41]. Section 6(2) makes the possession of a prohibited drug simpliciter an offence. A s 6(2) offence is punishable by a fine not exceeding $2,000 or imprisonment not exceeding two years, or both[42]. On the trial of a count under s 6(1) the jury may return a verdict for the simple s 6(2) offence if it is not satisfied that the accused's possession of the prohibited drug was accompanied by the requisite intention[43]. A person who attempts to commit an offence under the MDA is liable on conviction to the same penalty to which a person who commits the principal offence is liable[44]. A person has possession of prohibited drugs in circumstances that include the exercise of control or dominion over them[45]. [41]Misuse of Drugs Act, s 34(1)(a). [42]Misuse of Drugs Act, s 34(1)(e). [43]Misuse of Drugs Act, s 10. [44]Misuse of Drugs Act, s 33(1). [45]Misuse of Drugs Act, s 3(1) definition of "to possess". The evidence On 12 November 2010, officers of the New South Wales Police Force, acting at the request of their Western Australian counterparts, executed a search warrant on a freight company's premises in Sydney. They were shown a cardboard box which had been received for consignment to Western Australia. The consignment note contained an instruction to call for collection "James Walker" on a mobile telephone number which ended with the numbers 731 ("the 731 number"). Inside the cardboard box were two padlocked plastic toolboxes each containing five plastic bags of methylamphetamine. The total quantity of methylamphetamine was 4.981 kg. The purity of the drug was 84% and was indicative that it was "from the point of manufacture". Expert evidence established that 4.981 kg of methylamphetamine was a highly valuable commodity. The contents of the plastic bags were replaced with rock salt and the cardboard box was reconstructed. A listening device was concealed inside the packaging. A man named Matthew Lothian attempted to collect the cardboard box from the freight company's premises in Perth on 15 November. He was told to return the following day. He did so. His car ran out of fuel on the way and he completed the journey to the freight company's premises by taxi. After collecting the cardboard box Lothian re-fuelled his car and returned to his home in Falstaff Crescent, Spearwood. As the result of his attendance at the freight company on 15 November, the police were maintaining surveillance on Lothian's movements. He entered the Falstaff Crescent premises with the cardboard box at about 3:16pm. At about 3:20pm, the appellant arrived at the premises by bicycle. The listening device recording was in evidence. It was of poor quality but three voices were audible on it. These belonged to Lothian; his girlfriend, Venetia Tilbrook; and the appellant. The cardboard box was opened after the appellant's arrival. Sounds consistent with its opening and with the padlocks on the toolboxes being cut were audible. So, too, was Lothian's account of having run out of fuel. Significantly, that account commenced with Lothian saying "when I first text ya, yeah, from there, mate, anyway, everything went to shit", suggesting on the prosecution case that he had made contact with the appellant shortly before collecting the consignment.
Decision
Reasons for decision
KIEFEL CJ, BELL, KEANE AND GORDON JJ
GAGELER J
NETTLE J
EDELMAN J
That is not to say that, if the jury had been correctly directed, it would not have been open to them to be satisfied of Kalbasi's guilt. The large quantity of the drug in question and the other circumstances of the alleged offending represented a powerful circumstantial case of guilt. But, as was emphasised in AK[166] and reiterated in Baiada[167], demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice has occurred. It is not open to an appellate court to be satisfied that an accused was proved guilty beyond reasonable doubt if it was open to the jury to reach the contrary conclusion. And here, for the reasons already stated, if the jury had been properly directed, it would have been open to them to reach a contrary conclusion.[166](2008) 232 CLR 438 at 457 [58] per Gummow and Hayne JJ.[167](2012) 246 CLR 92 at 104 [29] per French CJ, Gummow, Hayne and Crennan JJ.Conclusion and orders In the result, the appeal should be allowed. The order of the Court of Appeal dismissing the appeal should be set aside. In its place, it should be ordered that the appeal to the Court of Appeal be allowed, the conviction the subject of the appeal be quashed, the sentence passed below be set aside, and a new trial be had. There will always be a "substantial miscarriage of justice"[168] where a person is "not in reality tried for the offences for which he was indicted"[169]. That is what occurred in this case. As the respondent properly conceded, the trial judge removed from the jury's consideration an element of the offence. The remaining elements considered by the jury constituted a different offence. For the reasons below, I agree with the conclusion of Nettle J that the directions of the trial judge were contrary to law and constituted a serious departure from the requirements of a fair trial[170]. This is why the appeal should be allowed and orders made as proposed by Nettle J. [168]Criminal Appeals Act 2004 (WA), s 30(4). [169]Quartermaine v The Queen (1980) 143 CLR 595 at 601; [1980] HCA 29, quoting Andrews v The Queen (1968) 126 CLR 198 at 207; [1968] HCA 84.[170]At [143]. The removal of an element of the offence from the jury As Nettle J explains, Mr Kalbasi was charged with an offence of attempted possession of a prohibited drug with intent to sell or supply contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA). The trial judge directed the jury that there were four elements that had to be proved by the prosecution:(1) the offender was the accused (identity);(2)the substance with which the charge is concerned is a prohibited drug;(3) the accused attempted to possess that prohibited drug; and(4)the accused intended to sell or supply the prohibited drug, or any part of it, to another. The trial judge directed the jury, as a matter of law, that the fourth element – the intention to sell or supply – "is proved beyond reasonable doubt". The trial judge told the jury that "you should give it a tick". An element of the offence in s 6(1)(a) was therefore taken away from the jury. The reason why the trial judge chose to take that element away from the jury was that the trial judge erroneously said, and all counsel incorrectly assumed, that the onus lay upon Mr Kalbasi to "remove that presumption" of an intention to sell or supply. The trial judge therefore told the jury that since Mr Kalbasi had not raised the issue of a lack of intention to sell or supply it "must be satisfied [of that element] beyond reasonable doubt".The effect of removing an element of the offence from the jury
Ratio Decidendi
Legal Principle Established
Established by: KIEFEL CJ, BELL, KEANE AND GORDON JJ, GAGELER J, NETTLE J, EDELMAN J
Full text does not contain this section.