Rodi v Western Australia

[2018] HCA 44

HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, KEANE, NETTLE AND GORDON JJ

PAUL JOSEPH RODI  APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA  RESPONDENT

Rodi v Western Australia

[2018] HCA 44

10 October 2018

P24/2018

ORDER

1.Appeal allowed.

2. Set aside orders 5 and 6 of the orders of the Court of Appeal of the Supreme Court of Western Australia made on 21 April 2017 and, in their place, order that:

(a)the appellant's application for an extension of time to appeal be granted;

(b)the appeal be treated as instituted and heard instanter and allowed;

(c)the appellant's conviction be quashed; and

(d)a new trial be had.

On appeal from the Supreme Court of Western Australia

Representation

M D Howard SC and R R Joseph for the appellant (instructed by Norton Rose Fulbright Australia)

A L Forrester SC with L M Fox 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

Rodi v Western Australia

Criminal law – Prohibited drug – Appeal against conviction – Fresh evidence – Miscarriage of justice – Where appellant convicted of possession of prohibited drug with intent to sell or supply it to another – Where expert witness gave evidence at trial casting doubt on credibility of appellant's testimony – Where expert witness gave evidence in earlier proceedings inconsistent with evidence given in appellant's proceedings – Where earlier inconsistent evidence not disclosed to appellant at trial – Where Court of Appeal of Supreme Court of Western Australia admitted expert witness's earlier inconsistent evidence as fresh evidence but determined that no miscarriage of justice had occurred – Whether miscarriage of justice occurred.

Words and phrases – "credible and cogent", "fresh evidence", "miscarriage of justice", "new evidence", "onus of proof", "significant possibility of acquittal", "yield".

Misuse of Drugs Act 1981 (WA), ss 6(1)(a), 11(a).

1. KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. On 14 April 2012, police officers executed a search of the appellant's home. They located a total of 925.19 g of cannabis in the house. Subsequently, the appellant was charged on indictment in the District Court of Western Australia with one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act1981 (WA).

   The trial

2. At the beginning of the trial, the appellant formally admitted that he was in possession of the cannabis found by the police[1]. Because of the quantity of cannabis found in the appellant's possession, he was deemed by s 11(a) of the Misuse of Drugs Act to have had the cannabis in his possession with intent to sell or supply it to another "unless the contrary [was] proved" by him.

   [1]Rodi v Western Australia (2017) 51 WAR 96 at 100‑101 [18]‑[19].

3. The prosecution tendered evidence that the police, in searching the appellant's home on 14 April…