Saturday, April 07, 2018

Kalbasi v Western Australia: analysing conviction appeals without Weiss

In Kalbasi v Western Australia [2018] HCA 7 the Court split 4-3 on whether Mr Kalbasi’s conviction was a substantial miscarriage of justice.

In trying to answer this question the judges used a notoriously difficult decision of the Court, Weiss v The Queen (2005) 224 CLR 300;  [2005] HCA 81. The differences in the conclusions reached by the judges suggests that Weiss doesn’t work.

In New Zealand we no longer struggle to decide whether a miscarriage of justice is “substantial”. The reformed law is in s 232 of the Criminal Procedure Act 2011.

True to say, Weiss has some lingering influence here, by way of applying Matenga v R [2009] NZSC 18, as can be seen in Wiley v R [2016] NZCA 28 at [18], [49], [51], but that may be only a clinging-to-the-wreckage instinct which the Supreme Court could well correct when it decides the appeals in Z v R (the leave decision was [2017] NZSC 172, 17 November 2017, not available online.)

How would Kalbasi have been decided under s 232?

Kalbasi is a wonderful example of a plethora of appeal issues arising from relatively straightforward facts. Jeremy Gans discusses these at the HCA blog.

I think that, applying s 232 here, we would agree with the conclusion reached by the majority in Kalbasi.

Was the trial unfair (s 232(4)(b))? At common law a trial is fair if the law was accurately applied to facts that had been determined impartially. Impartially includes without bias and without apparent bias, and requires that the fact-finder has given appropriate weight to the various items of evidence and has reasoned correctly.

Although there was an error of law in Kalbasi – everyone thought the presumption of purpose of supply applied, but it didn’t because the charge was only one of attempting to have possession (of methamphetamine) for the purpose of supply. It was an attempt because the police had substituted salt for the drug in the package. The error was immaterial for two reasons: the defence that was relied on (absence of proof of possession) made the subsequent issue of purpose irrelevant, and the quantity of the drug had been about 2000 times that at which the presumption is triggered, so there would have been, without a presumption, a strong factual inference for the defendant to raise a doubt about if that purpose had been contested.

So as a practical matter, the error of law didn’t matter. In some trials it is necessary for all defences to be considered, even those on which the defendant has not relied, but in this case the facts made a contest on the issue of purpose hopeless for the defendant. The error of law was inconsequential on these facts.

Were the facts determined impartially? The issue on possession was whether the defendant had exercised a power of control over what he thought was the drug. Control was properly explained to the jury. The defence was that the defendant did not have control because he was just present to take a small quantity of the drug for his own use. Usually, this would be a defence offered to negate the allegation of purpose of supply. But in the circumstances here the tactical decision to challenge possession rather than purpose was not unreasonable.

The defendant did not give evidence, and there was no criticism of that choice. It left the issue of possession, and more precisely of control, as a matter of inference. There were circumstances that supported the conclusion that Mr Kalbasi had a greater interest than merely obtaining a small quantity of the drug for his own use.

Given that the trial was fair, was there a real risk that the outcome of the trial had been affected by any error, irregularity or occurrence (s 232(4)(a))?

The judge had used a library book analogy to explain the difference between ownership and possession. The same analogy could have more pertinently illustrated the difference between custody and control. If you are the only visitor in a small library, and the librarian leaves the room briefly, you may be said to have custody of the books, but you would only have control of a book you picked out of the shelves. Control may be temporary and conditional on return, and it may be shared, and the evidence was that Mr Kilbasi had worn a latex glove and assisted with cutting or inspecting what he thought was the drug. So even if the library book analogy had not been used in the most apposite way, the jury would not have been misled about what control is.

There was no real risk that the outcome of the trial had been affected by an error, and the conviction was not a miscarriage of justice.