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.
