Drug Law is Bad, M’Kay?: Kalbasi v Western Australia

So, first of all, smokin’s bad. You shouldn’t smoke. And uh, alcohol is bad, you shouldn’t drink alcohol. And as for drugs, well, drugs are bad, you shouldn’t do drugs. M’kay, that about wraps up my introduction, now are there any questions? Yes, Stan?

The many problems of drugs — and of the ‘war on drugs’ — are well known. This post concerns a less discussed drug problem: the criminal law of drugs. No-one has adequately solved the legal puzzle of how to prohibit the market in bags of powder — in particular, how to reliably and fairly connect identifiable people to those bags of powder,

The criminal law of drugs is bad. Even the simplest drug situations routinely raise vast problems for police, lawyers and judges. The common scenario of someone flying into an airport with a suitcase lined with drugs prompted Australia’s most important — and its most difficult — High Court case on the criminal law. A person’s criminal responsibility (or lack of responsibility) for what is in her luggage continues to be fine-tuned three decades later, including in two High Court cases last year.

Last month, the High Court’s judges split four to three on another, recurrent drug law puzzle: proving who is responsible for drugs sent unaccompanied in the mail. The complex appeal in Kalbasi v Western Australia [2018] HCA 7 is an object lesson, not only in how very difficult it is for police to net the biggest players, but also how Australian courts can punish someone for being a Mr Big without ever affording him a fair trial before a jury.

Now, uh, let’s focus our discussion first on marijuwana. Marijuwana is bad. And it also has a very distinct smell, m’kay? I’m going to pass around just a little tiny bit, and I want you all to take a smell, so you know when someone is smokin’ marijuwana near you.

Seven-and-a-half years ago, the Western Australian manager of General Carrying Pty Ltd, an interstate freight company, watched a customer fumble a carton that had just arrived from Sydney. He later told the company’s Sydney owner (who told the NSW police) that the green substance that poked out after the box fell smelled like cannabis. ‘Adam Jones’, the supposed sender of the carton, had sent four others from Sydney to Perth in the past two months, paying cash each time. Staff were told to report any further cross-continent cash-funded consignments. The next month, an employee pointed out a new box, this time sent by ‘Victor Brendon’, but listing the same origin address as several of the ‘Jones’ cartons. When NSW police opened it, they found tool boxes that hid ten bags of crystal meth.

This was no victory in the war on drugs. Scarcely 5kg of crystal meth is nothing compared to the multi-tonne seizures police sometimes claim, let alone the total national market. And the police had no clue about who was behind the carton. Their sole plausible lead was a phone number in the delivery details — ‘James Walker 0403 717 731 Please ring for P/up’ — but they knew that whoever answered the phone would deny all knowledge of carton and drugs alike.

To catch a drug trafficker, the police needed trick the people behind the package not only into coming forward, but also into acting in a way that left no reasonable doubt that they knew exactly what was in the tool boxes. So, the police sealed them back up and sent the carton on its way to Perth.

M’kay, just take a smell, pass it on, and when it gets back up to me, we’ll finish talking about it. In the meantime, I want to get into alcohol a little. M’kay, uh, alcohol is bad. If you drink alcohol …

Six days later, Matthew Lothian carried the box out of General Carrying’s Perth Office and then got into a taxii, while undercover police officers watched from nearby. The police followed the taxi to a petrol station and then Lothian’s car, which had run out of fuel in the midst of the drug run. Eventually, they watched him carry the box into his Spotswood home. Four minutes later, another man arrived by bicycle and went inside.

The police, who had packed a bug in the box, listened as two men and a woman chatted while cutting open the carton and then the toolboxes. Lothian told the others he had run out of fuel, but omitted the part about having to pick up $5M worth of drugs by taxi. After Lothian’s girlfriend left, the second man said ‘Matty, you got a pipe?’ A short time later, he was back on his bike, apparently phoning someone. A brief police car pursuit — ending when the man tumbled from his bike just before the police struck it — was followed by an even briefer foot chase. The man had $900, but no phone, and gave the police a false address.

The police wrapped up the operation by catching Lothian red-handed. In his house, they found nine bags of powder stashed in a cupboard, the tenth one open in a sink, a baking dish on the stove full of a chemical used to cut methylamphetamine for sale, dozens of ziplock bags, a set of scales and several pairs of gloves. Unsurprisingly, he soon pled guilty to drug trafficking, but the police accepted that he was no major player. Rather, the addict explained that he was paid in drugs and a small amount of cash to ‘warehouse’ the crystal meth — that is, hold onto the drugs in between delivery and sale, so that the deal’s true backers could stay one step removed. He said that he had no idea who the organisers were. So, where was the deal’s Mr Big?

… and so that’s why alcohol is bad. Has that marijuwana made it back up here yet? No? M’kay, let’s talk about LSD. Uh children, LSD is bad. It’s a drug made famous by John Lennon and Paul McCartney…

The cyclist, Pouyan Kalbasi testified in his own defence in Western Australia’s District Court two years later. He readily admitted to visiting the Spotswood house for a drug deal, but told the jury that he was an even smaller player. Lothian was his dealer, he said, and Kalbasi had the misfortune of dropping by for a fix in the middle of a criminal (and police) operation. He said he was in the next room when the drugs were unpacked and explained away his DNA on one of the gloves as due to a handshake. He also admitted lying to the police about his address, to hide his habit from his wife.

The prosecution called evidence that Kalbasi was more than he seemed. Detective Peter Shanahan, who had watched and then helped chase the cyclist, told the jury that Kalbasi’s visit to the Spotswood house was consistent with a senior drug trafficker checking to see that all is in order with a shipment of drugs. As well, Kalbasi had links to the various General Carrying consignments. ‘James Walker’s’ phone number was listed on the phone of a friend of Kalbasi’s,  Kalbasi’s own phone listed an earlier number ‘Adam Jones’ had supplied to General Carrying, and Kalbasi’s flight details showed that he had been in Sydney when each of the six cartons was consigned. Presented with this and other evidence, the jury found that Kalbasi was at Lothian’s house to facilitate the future sale of the 5kg of crystal meth.

But the law of drugs is not so easy. The Western Australian Court of Appeal held that the prosecution’s arguments rested on inadmissible evidence. Kalbasi’s links to the other five consignments were too slim to justify revealing these earlier suspicious events to the jury, and Shanahan’s expertise — scarcely a dozen previous drug investigations — was too slight to support his opinion. As well, the trial judge had wrongly told the jury to treat Kalbasi’s lie about his address as evidence of his guilt. The Court of Appeal had to decide what followed from these errors: was the prosecution case now so hopeless that Kalbasi should go free? Or was it so strong that Kalbasi should stay convicted anyway? The Court rejected both options. Kalbasi would face a second trial.

Uh, who has the marijuwana now? M’kay, whoever has the marijuwana just pass it up to the front row….

There was no doubt that Kalbasi knew full well that Lothian was dealing in a large amount of meth. But to convict someone of trafficking, Western Australia law requires the prosecution to prove that the defendant:

(a) with intent to sell or supply it to another, has in his or her possession a prohibited drug; or

(b) manufactures or prepares a prohibited drug; or

(c) sells or supplies, or offers to sell or supply, a prohibited drug to another person.

The prosecution’s only option in this case was para (a), a difficult task, but one assisted by a further statutory provision:

For the purposes of… section 6(1)(a), a person shall, unless the contrary is proved, be deemed to have in his possession a prohibited drug with intent to sell or supply it to another if he has in his possession a quantity of the prohibited drug which is not less than the quantity specified in Schedule V in relation to the prohibited drug.

Just 2gm of meth was enough to trigger this provision, so the trial judge told Kalbasi’s second jury:

Very briefly, the law is that if you are found in possession of more than two grams of methylamphetamine then you are presumed to be in possession with intent to sell or supply it to another and the onus is on you to remove that presumption. There is no issue in this trial about the fourth element and as I’ve said it will not delay your deliberations.

Once, again, though, the law of drugs is not so simple.

Uh oh.

A major barrier to linking people to bags of powder is that those bags of powder are bad. In 1995, the High Court ruled that police who supply drugs to someone (say, in order to prove that she is willing to handle drugs) are drug traffickers themselves, with the result that all of the evidence can be excluded as illegally obtained. Police have since been given the power to lawfully commit crimes as part of an investigation, but there are limits: they cannot ‘seriously endanger the health or safety of any person‘. In 2008, the High Court held that police could not let drugs reach end users because, well, drugs are bad.

In Kalbasi’s case, the NSW police opted to instead replace all the crystal meth with rock salt. This strategy wholly avoids any risk that the meth would enter the market, but creates three new problems. One is that the surveillance would be exposed as soon as anyone sampled the drugs (as Kalbasi seemingly did before he left Lothian’s house.) The second is that no-one can be charged with trafficking for post-switch dealings — rock salt isn’t illegal. Instead, the police charged Lothian and Kalbasi with attempting to deal with an illegal drug, based on proof that they thought they were doing something illegal. But this raised a third problem: in 1998, the High Court ruled that Western Australia’s presumption of intent to sell doesn’t apply in such cases (because it requires proof of possession of at least two grams of meth, not two grams of rock salt.) So, Kalbasi’s second trial judge had made a terrible mistake.

We are young, m’kay? Heartache to heartache we stand, m’kay? No promises, no demands…

The question that was before the High Court in Kalbasi’s case — when can a criminal conviction be upheld despite the trial judge making a terrible mistake? — is a question that only arises on appeal. The specific puzzle is the meaning of a provision of appeal courts’ statutes that permits them to uphold any conviction so long as there was ‘no substantial miscarriage of justice’. This power is essential, because it is so hard to run a criminal trial without making some mistakes (about evidence, or directions to the jury, or charging procedure, or the like..) But it also means that someone can be convicted, even of a very serious crime, following an imperfect, even unfair, trial.

The High Court plays an outsized role in this part of the criminal law. Usually, any trial decisions made at an Australian trial, including a jury verdict, can be reviewed twice — once by an appeal court and once by the High Court, if it grants leave, But an appeal court’s decision on whether or not there was a substantial miscarriage of justice at a trial can be reviewed at most once (and only if the High Court grants leave.) All of the High Court’s own decisions are unappealable, which is what makes the Court’s judges so strong — no-one can tell them they’re wrong.

In 2005, six judges of the Court ruled that, to work out whether or not there was a substantial miscarriage of justice, appeal judges must ask themselves whether they are sure of the defendant’s guilt despite the trial judge’s error. Applying this test, the three Western Australian judges dismissed Kalbasi’s appeal because they were all sure that Kalbasi wanted to sell the 5kg of meth. Kalbasi asked the High Court to rule that the 2005 test was either wrong or had been misunderstood in subsequent cases, including in Western Australia. But six judges of the current Court approved the 2005 ruling and the subsequent case law.

Only the Court’s newest judge, Edelman J, held that the trial judge’s particular error in this case meant that what the appeal judges thought of the prosecution’s case against Kalbasi was beside the point. He relied on a much earlier High Court case from 1980 which ruled that failing to tell a jury about an essential element of the crime charged is always a miscarriage of justice; ‘[t]o conclude otherwise;’, he said, ‘would be to replace a trial by jury with a trial by appellate judges.’ But the majority distinguished the 1980 case, as Kalbasi’s jury were told that intent to sell drugs was part of the crime of drug trafficking, even though they were also wrongly told that the statutory presumption applied. Because:

[t]he sole issue in the way the trial was run was proof that the appellant was in possession of, in that he was exercising control (by himself or with Lothian …) over, the substitute ‘drugs’ in the cardboard box.

the trial judge’s instruction to ‘give that element a tick — it is not an issue for you in this trial’ may well have been correct.

Oh, you’re just like the government, man. Trying to prosecute out of one side of your mouth, m’kay? 

The saying ‘possession is nine-tenths of the law’ is about the civil law of property, but it also rings true in many criminal drug cases. The question of possession was at the heart of Kalbasi’s trial, specifically whether or not the cyclist possessed the ten plastic bags of meth-like salt during his half an hour at Lothian’s house (and what exactly that implied for his state of mind.)The problem is that possession is complicated.

The difficulty can be seen in another typical drug scenario, vividly described in a 2009 US judgment:

Reminiscent of a scene from a Cheech & Chong movie, Baltimore City police officers… executed a search warrant on a dwelling… where the occupants on one floor were found shrouded in a haze of marijuana smoke. Despite the appearance of the police, Clavon Smith, one of those present, behaved as though everything remained “groovy.” Smith was seated in a chair at a table within arm’s reach of a smoldering marijuana blunt…

A majority of Maryland’s Court of Appeal ruled this was enough to prove beyond reasonable doubt that Smith possessed the blunt. The sharp dissent adopted a different TV reference:

Although, in the immortal words of Mr. Mackey, “drugs are bad,” the law imposes no legal duty, as opposed to moral duty, to stop others from using drugs, or to run away from people who are using drugs. It is unreasonable to infer from Smith’s proximity to others who are or may have been using marijuana that Smith possessed marijuana on the basis of his association.

Kalbasi didn’t try to convince the High Court that he never possessed the crystal meth — his jury clearly and fairly found that he had, at least for the 37 minutes he was in Lothian’s house. Rather, he argued that that finding wasn’t enough to settle the question of whether or not he meant to sell the drugs.

Kalbasi argued that it wasn’t just the law behind the statutory presumption, but also its logic, that didn’t apply in his case, because the trial judge had invited the jury to convict the cyclist based on a special meaning of possession. The trial judge had told them:

if I borrow a book from the local library, obviously I do not own the book but while I have taken it out of the library, it is under my control and is therefore in my possession. The notion of possession is wide enough to include the case of where I might lend that book to my best friend because they want to read it too. So the fact that I have taken the book out of the library and have given it to my best friend on the basis that I need to return it to the library is sufficient for me to say that my best friend also has possession of that book while he or she has it in their physical custody or control.

For Gageler J, this meant that the jury may well have found that Kalbasi possessed the ten bags without wanting to sell it:

The possession involved in borrowing a book from a friend for a short period and in circumstances where the mutual expectation is that the book will be returned to the friend so that the friend can return it to the library is possession of a materially different character from the possession involved in holding a book with the intention of selling it to some other person. The two forms of possession are mutually exclusive.

Justice Nettle likewise found that ‘If the jury were satisfied of no more than that Kalbasi helped Lothian cut the “drug”, the jury could not logically have been satisfied beyond reasonable doubt that Kalbasi possessed the “drug” with intent to sell or supply it to another.’

But the remaining four judges (a bare majority of the Court) disagreed. They noted that, in contrast to his first trial, Kalbasi didn’t tell the jury that he was only at the house to buy a fix – indeed, he didn’t testify at all:

The trial judge’s illustration of the loan of a library book served to explain that possession is less than ownership and need not be exclusive. It is difficult to see how the direction was apt to mislead given the evidence and the conduct of the trial. There was nothing in the evidence to raise as a possibility that the appellant may have been inspecting the ‘drug’ with a view to deciding whether or not to purchase some part of it.

This meant that Kalbasi’s conviction stood, despite the judge’s wrong direction on intent: ‘[t]he Court of Appeal was correct to reason that proof beyond reasonable doubt that the appellant attempted to possess nearly 5 kg of 84% pure methylamphetamine compelled the conclusion that it was his intention to sell or supply it to another.’

Wow, man… You know it’s like… You go through life thinking that you’re an individual, m’kay? and then you realize you’re more than that. We’re all just one big individual. M’kay?

In October 2014, four years after the box of alleged marijuana broke open at the Perth office of General Carrying, Kalbasi was sentenced for drug trafficking by District Court Judge Christopher Stevenson. The former partner at Mallesons Stephens Jacques is stern on drugs matters. He recently issued multi-year sentences to two men who tried to sell 31g of meth to an undercover cop, saying he ‘found it very hard to be sympathetic’ to claims that they were minor players. Kalbasi — who Stevenson DCJ found had a ‘position of control at a greater level and therefore higher up the chain of distribution than Mr Lothian’ — was sentenced to fourteen-and-a-half years in prison. Including time served, he will be eligible for parole in 2025.

If a jury had found that Kalbasi wanted to sell 5kg of crystal meth to the people of Perth, then this would have been a fair punishment. But a jury of twelve only ever found that the cyclist possessed the meth (for 37 minutes) – mere drug possession carries a much smaller sentence. Instead, Kalbasi was convicted of trafficking by was seven men and women – none of them Kalbasi’s peers, none of whom saw him testify, and whose decision cannot be appealed.  What’s worse is that only four of the judges believed in his guilt beyond reasonable doubt.

As Edelman J asked in the High Court hearing about the notion that appeal judges must decide the accused’s guilt for themselves:

How does that approach deal then with the possibility of dissenting judgments …? In other words, if one judge was satisfied beyond reasonable doubt in his or her mind that conviction would occur, but in a dissenting judgment, can the first judge say that that dissenting judgment is a view that could reasonably have been formed and could be a view that could have been taken by the jury?

To paraphrase, if three of Australia’s top judges aren’t sure that the prosecution had proved that Kalbasi wanted to sell 5kg of meth, how can the other four judges believe beyond reasonable doubt that he did (and that the trial judge’s error caused no substantial miscarriage of justice to him?) The High Court is the only court in Australia where a conviction can be sustained despite three judges voting against it, and that can only happen in cases like this one where seven judges sit

This particular problem is a rare one these days, at least in Australia. The current High Court is remarkable in its near unanimity on nearly everything it decides: out of fifty judgments last year, only three attracted more than a single dissent and just one was effectively decided by a single judicial vote. The obvious retort is that four of Australia’s seven most senior judges thought Kalbasi’s conviction was safe. But, as I’ve argued on this blog before, this comfort is significantly diminished by the High Court’s recent practice on how it reaches (or at least explains) its group decisions, specifically its strong preference for majority decisions to be written by a single, anonymous author.

A particular cause for discomfort in this narrowly decided case is that the four-judge majority that upheld Kalbasi’s conviction included a trio of judges — Kiefel CJ, Bell J and Keane J — who routinely think (and, indeed, write) as one, especially in criminal cases. In the seventy criminal appeals the High Court has decided since Keane J’s appointment five years back, there were just nine where any of these three judges wrote separately from the others, and only three where one of them dissented. (Justice Bell joined six of the nine separate judgments and was the only dissenter of the trio. Justice Keane has never dissented in a criminal appeal, and Kiefel CJ hasn’t in at least five years.) In short, the three judges appear to act as an almost unshakeable single, and usually determinative block vote in criminal matters. (Whether the appearance of block voting matches the reality behind the scenes is unknown and, indeed, unknowable.)

If Kalbasi read the High Court transcripts in his case, he may feel further disquiet. Written judgments aside, the only guide we have to each individual judge’s engagement with the case before them is the conversations they choose to have with counsel. My count of distinct conversations each judge had with counsel at Kalbasi’s full court hearing are as follows:

  • Kiefel CJ: 14
  • Bell J: 23
  • Gageler J: 8
  • Keane J: 1
  • Nettle J: 7
  • Gordon J: 2
  • Edelman J: 10

Of course, these counts reveal nothing of the Court’s internal deliberations and may only capture differences in judicial style or a particular meeting of minds in this case. But they underline the dangers involved in upholding Kalbasi’s conviction for drug trafficking (in the absence of a fair jury verdict on that point) by a simple judicial head count.

Let’s get married … And have a honeymoon in India. M’kay.

Six months before he cycled into Lothian’s house, Pouyan Kalbasi testified at the Migration Review Tribunal on behalf of his wife, an Iranian resident in the United States. After a long-distance courtship, the couple had married at the beginning of 2008 and travelled the world before entering Australia. One Monday, she rang the Department of Immigration to ask about her visa conditions and was told her visa had expired the previous Friday. Told that she had 28 days grace to apply for a new one, she lodged a fresh application four weeks later, only to be told that the 28 days counted from her visa’s expiry, not its notification. While this left her a mere day short, Minister Chris Evans’s delegate refused to waive the time limit. After Kalbasi testified, the Tribunal found that his wife’s errors were genuine and understandable, and shouldn’t determine her status in Australia.

The Western Australian and High Courts were similarly forgiving of the genuine and understandable mistakes made by Kalbasi’s trial judge. But, in making the crucial factual findings that preserved his conviction, the courts applied a familiar, simple but inflexible rule — simple majority decision-making in appellate matters — that, while a reasonable way of settling legal disputes, seems ill-suited to jury-specific factual matters that his appeal raised. Like his wife’s migration matter, Kalbasi’s appeal is mundane compared to other criminal cases that involve much more alarming crimes or much more difficult errors. But mundane cases can equally cause great injustice, especially when the law is uncertain and the consequences are great. The problems posed by the criminal law of drugs — and by the evil of drugs themselves — are no justification for taking shortcuts when taking away someone’s liberty for a decade.

Okay, kids, you shouldn’t do drugs. M’kay? Drugs are bad. You see, I was at the bottom of the barrel. I was a wreck. Why, I didn’t even care about money. I was wasting my life, hiking in the Himalayas, m’kay…

AGLC3 Citation: Jeremy Gans, ‘Drug Law is Bad, M’Kay?: Kalbasi v Western Australia’ on Opinions on High (2 April 2018) <http://blogs.unimelb.edu.au/opinionsonhigh/2018/04/02/gans-kalbasi/>.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

17 thoughts on “Drug Law is Bad, M’Kay?: Kalbasi v Western Australia

  1. What would William Blackstone say? When our system is premised on the maxim that its better 10 guilty men go free than 1 innocent man suffer.

    • That is true of the original basis of the system, but has not been true of either community sentiment or criminal lawmakers for a long time, both of whom are more outraged by a perceived guilty man being acquitted (especially on a legal technicality), or even being convicted but giving what is perceived as a lenient sentence, than a discovery that proves a convicted man was innocent all along. It would seem a terrible result to many that the accused would easily be convicted if not for the police actions in switching the drugs for salt- without the knowledge or intention of the accused, and that no doubt colours the way different judges see the case.

      I’m not sure of the point of citing the statistics for individual judges interacting with Counsel in the hearing; about all it shows is that Kiefel CJ and Bell J were particularly questioning, instead you seem to be trying to insinuate that others (particularly Keane J) were not paying attention or thinking their own thoughts. That’s a very dangerous insinuation to make from such limited evidence.

      • Sorry, “you” in the second paragraph was directed at Professor Gans, not at Matthew! I moved onto a second thought but not a second actual post….

      • The evidence isn’t just the stats on interactions (which are clearly meagre), but the stats on how often Kiefel, Bell and Keane reach the same conclusion in criminal appeals – Kiefel and Keane always do, Bell almost always does, which is surely remarkable. Given that, I think it’s fair enough to speculate why, albeit noting the limitations of that speculation, which I do in my post. I don’t see what’s dangerous about it. The impression that some of the High Court engages in block voting, rather than deciding independently of one another, is surely worth considering.

        • It often felt like Justices Gummow and Hayne were a hivemind. I don’t think there’s anything inherently wrong likeminded judges, and there’s a certain benefit to having clear ratios rather than every judge in a plurality reaching the same result but enunciating the test in a slightly different way.

          As for the stats on interaction, as you they are meagre, so why include them in the post and suggest they are a cause for disquiet? If this were a criminal trial they would be excluded for having a prejudicial effect greatly exceeding any probative value, for all the disclaimers you have put after them.

          • I haven’t done the stats, but my impression is that Kiefel/Keane (who have never differed even once, and only written separately twice, in 70 criminal appeals over five years) is much more extreme than Gummow/Hayne. While I do have my problems with anomymous joint judgments, the bigger issue here is the combination of that with such a strong pattern of joint results. Just hypothetically, if it turned out that three judges on the Court had a pact to always vote as a block, would your response be ‘Good for them! Simpler judgments for us to read.’?

            As for the interaction, this blog isn’t a jury trial (and nor of course should a High Court hearing be a jury trial, even if it works that way in proviso cases.) Again, I’m curious: why do you think Keane and Gordon had so little to ask in such a complex and close case?

          • If two judges had a pact to vote together no matter what then that would obviously be of great concern since it would mean they weren’t approaching cases with the necessary independence and open mind. It would be an ethical breach demanding their immediate resignations from the bench. It would also be a pretty astonishing allegation to noise around even as a hypothetical, precisely because it is so serious.

            I don’t have statistics available on how frequently any of the judges of the High Court ask questions. I certainy recall the endless discussion from the US of Justice Clarence Thomas choosing not to ask questions for years on end. Justices Keane and Gordon may have had their planned questions overtaken by colleagues who were quicker about asking, or may not have felt they needed the questions to understand the written submissions and oral argument.

          • Sure, Arky, but just because something is really concerning shouldn’t bar discussion of it. Everyone discusses block votes on the USSC, because there is such a clear pattern of them (and, as it happens, a ready political explanation of them.) The question is whether there is a point where a pattern of High Court judgements raises that possibility in Australia. Personally, I was pretty shocked to see that Kiefel and Keane have never disagreed, even once, in five years of criminal appeals (and have also always been in the majority, which is unsurprising as they’d only be in dissent if all three other judges on a five-judge bench disagreed.) Possibilities include coincidence, block voting or a meeting of minds. Which do you think?

            Yes, as you keep saying (and I said in my post), there are plenty of possible explanations for non-interactions during an oral hearing. But a different pattern of interactions could easily have dispelled concerns about block voting, right? So, it’s relevant to look at the pattern. This pattern does (I think) dispel one possibility: that three judges in the majority deferred to a particular judge – there were at least two highly engaged judges. As another commenter pointed out, there are other ways to dispel such concerns (for example, Gordon J’s highly independent pattern of judgment writing and dissents.)

  2. I think looking at judicial interventions/interactions/questions is a dangerous metric by which to judge judges’ judging (sorry couldn’t help myself).

    There have always been more or less engaged judges when it comes to oral argument. Sometimes you get a glut of them at one time – the Gleeson Court was particularly interventionist with very many interruptions and very few occasions on which counsel made lengthy submissions without intervention. Sometimes you get relatively quiet ones, which would probably characterise the last few years of the French Court and the Kiefel Court.

    Sometimes judges evolve over time. My reading of High Court transcripts suggests that in recent years Justices Crennan and Bell in particular, and Justices Kiefel and Gageler to a lesser extent, have become more interventionist during argument the longer they have been on the Court. On the flip side, Justice Heydon went from being a fairly interventionist judge to a fairly taciturn one (although he might be described as an outlier in several respects).

    Interestingly, if one looks at the Mabo transcripts available on AustLii, you will note an extraordinary lack of judicial intervention relative to the length of the hearings and the issues involved, which may fairly be described as the most constitutionally important ever to come before the High Court. I doubt anyone would suggest that there was a lack of judicial engagement in that case simply by reason of the relative paucity of judicial intervention during argument.

    • Those are all fair points. But in the Mabo era, the High Court did not have a practice of usually producing judgments where it was impossible to tell who wrote them. To the contrary, each judge wrote individually suficiently often (or the pairings or groupings changed so often) that it was generally possible to see each judge’s individual approach and to be sure that they have them. The opposite is true today, so we literally only have the assumption that they reach independent decisions to rely upon.

      You and Arky are rightly dismissive of looking at interactions. But think of the counterfactual where all four majority judges showed a high level of engagement during the hearing; in that counterfactual, my concern about the quality of bare majority justice for Kalbasi would be much reduced (though not eliminated, because of the broader argument I make that simple majorities are the wrong approach to these cases.) Unfortunately, that counterfactual isn’t true here, and two judges out of the four don’t show much engagement at all in Kalbasi’s case. Yes, of course, they may have been deeply engaged behind the scenes (although they still happened to agree with two other judges completely, and in Keane’s case as per usual), but the worry is not dispelled. If you’re not worried, fair enough, but is there a point where you would start worrying? My particular concern is for Kalbasi, though, who I think has a very fair claim that he is the victim of at least a procedural injustice in this case. I don’t think he’d have his mind settled by being told ‘sorry, us lawyers and academics don’t like to discuss these sorts of worries, because we can’t ever be sure either way.’

      • Not for one minute am I suggesting that we do not discuss these issues. It is important (and interesting) to do so.

        Re Mabo – Justices Mason and McHugh merely agreed with Justice Brennan – although perhaps in that case your desire for knowledge of authorship is satisfied? Justices Deane and Gaudron also wrote jointly (I may have read somewhere once that it is generally considered/assumed to have been a judgment principally written by Deane, but I could be wrong).

        As to the question of when I would start worrying – probably when the High Court has a Clarence Thomas type on the Court. I am aware that Justice Thomas has addressed the reason why he does not participate (out-loud) in oral argument but I think that extreme level of non-engagement is problematic. I may also start to be concerned if there were a persistent level of limited or non-engagement (such as in this case by Justices Keane and Gordon) and they were regularly forming majorities with other judges. My perception is that Gordon often intervenes and often writes separately (or most often with Justice Nettle) so this case is a bit of an outlier. I am not so sure about Justice Keane’s general level of involvement.

  3. The second issue raised regarding the level of agreement between judges is very salient. I had not realised the level of agreement between Justices Kiefel and Keane was so significant. Add in Justice Bell’s tendency to agree with those two and you have yourself a ready made majority (in 5 judge cases on which those 3 sit) and near majority (in 7 judge cases), at least in the criminal law.

    This discussion reminded me of an article by or interview with (I cannot now recall which) Justice McHugh in which he called Justice Gummow the “ultimate judicial politician”. He suggested that Gummow often had at least 2 or 3 judges who would routinely follow his view and that he (McHugh) felt that his view on a case was often irrelevant as a result (obviously suggesting that McHugh was rarely, if ever, among the judges following Gummow).

  4. I disagree that “in the Mabo era, the High Court did not have a practice of usually producing judgments where it was impossible to tell who wrote them”. In that era, Mason CJ, Deane, Toohey and Gaurdon JJ wrote together a lot (either all four, or three of them); and such was the difficulty of telling who wrote the judgment that there was a quite unfair view put about that Gaudron J never wrote. For that reason, in the 1990s the Court issued a judgment where Gaudron J wrote, and the other three simply said “I agree” (a tradition common to the early days of a judge’s tenure, but this was not that).

    • My impression was that that combination, while common, was still much less common than today. But this is guesswork and it’d be good to have stats. I know of a good many Gaudron J solo judgments – and no-one would ever have accused her of bring quiet during hearings. (The study seeking to identify authors of joint judgments in the Mason Court could cast light on some of this.)

      • From a quick look, the authors found at least 100 Gaudron-only judgnents (!) And they found 12 likely Gaudron judgments out of 112 joint judgments. Clearly no slacker.

  5. FYI, I did some calculations on pairings of Kiefel CJ/J and Keane J. They have sat together to date on 169 decided cases. Of those, they were in the same joint judgment (almost always with others) in 139 of those cases. And they reached the same conclusion (albeit sometimes with different reasons) in 163 cases. They wrote separately in 18 percent of cases and disagreed in just under 5 percent of cases (or 1 in 20.) They have never disagreed in a constitutional case, criminal appeal or private law case. Their six disagreements are in cases on tax, bankruptcy, native title, land compensation, maritime interceptions and coercive questioning on proceeds of crime. (The latter is arguably a crim/constitutional case.)

  6. As to judges not aking questions, I remember a time when Kris Walker and I and someone forgettable played judges in a moot. Repeatedly, as I was about to ask a question, Kris would get in first and ask it in almost exactly the same words as I would have, if I’d formulated the words a little bit quicker. Almost like we shared the same brain but hers was the slightly quicker version. Maybe that happens on real benches too – some judges are quicker to ask the questions and others think “Fine, that’s what I wanted to know too”.

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