The High Court dismissed, by majority, an appeal against a decision of the Western Australian Court of Appeal on a conviction and sentencing for drug importation. The appellant was convicted for attempted possession of 5kg of methylamphetamine with intent to sell or supply them to another, after police intercepted the drug shipment in two tool cases, substituted salt for the drugs, and then surveilled a Perth man take the cases home and unpack them in front of the appellant. The trial judge directed:

I’m now going to deal with the fourth element upon the jury aid, that the accused intended to sell or supply the prohibited drug or any part of it to another. Members of the jury, you can give that element a tick. It is not an issue for you in this trial.

The WASCA dismissed the appeal, holding that, although this direction was incorrect (as a statutory presumption of intent to sell or supply did not apply to the offence of attempted possession), the so-called ‘proviso’ to Western Australia’s criminal appeal statute (that the Court ‘may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred’) applied.

The High Court formed a bench of seven judges to address the meaning of its 2005 precedent on the ‘proviso’, Weiss v The Queen, which held:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

The appellant argued that the WASCA’s approach that regards the ‘negative proposition’ as determining the application of the proviso unless there was a ‘fundamental’ error of ‘process’ either ‘misapplies the principles explained in Weiss or, if it does not, Weiss should be qualified or overruled.’ The Court unanimously declined to overrule Weiss, but divided on whether the ruling was correctly applied in this case.

In declining to overrule Weiss, the majority (Kiefel CJ, Bell, Keane & Gordon JJ) observed (at [15]) that ‘Weiss requires the appellate court to consider the nature and effect of the error in every case’, because the error may prevent an appeal court from being able to assess whether guilt was proved. However (at [16]), ‘trying to identify some classes of case in which the proviso can be or cannot be applied [is] distracting and apt to mislead.’ The three dissenting judgments addressed Weiss at greater length. Justice Gageler held that ‘the ultimate question ordinarily to be addressed in the application of the proviso is whether the jury’s verdict might have been different if the identified error had not occurred’ ([64]ff) but that ‘the appellate court will often not be able to conclude that the appellant has not been denied a chance of acquittal fairly open other than through a process of reasoning which includes the appellate court’s own persuasion of the appellant’s guilt.’ ([68]). T. Justice Nettle observed (at [127]) that ‘the test is not whether the appellate court is satisfied that the evidence was sufficient to establish the accused’s guilt beyond reasonable doubt, or whether there has been a fundamental departure from the requirements of a fair trial. It is whether there has been no substantial miscarriage of justice.’ Accordingly, ‘a failure to follow trial processes may preclude an appellate court being satisfied of guilt beyond reasonable doubt whether or not the failure is perceived as so extreme’. Justice Edelman observed (at [152]) that, while ‘not all’ of the High Court’s judgments on the provsio since Weiss ‘are easy to reconcile’, one clear point is that there is no single universally applicable description of what counts as a substantial miscarriage of justice. Weiss’s ‘negative proposition’ is neither always sufficient ([155]-[156]) nor always necessary ([157]-[158]). While Gageler J held (at [72]) that the WASCA’s approach elevated the second proposition to such a level that it lost sight of the first proposition and Nettle J expressly said criticism of the WASCA’s division between process and outcome errors (with the negative proposition applying to all of the latter) was ‘warranted’ (at [128]), the majority merely said (at [15]) that ‘[a]ssessing the application of the proviso by reference to considerations of “process” and “outcome” may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter’.

The majority dismissed the appeal, observing that, despite the evidence of the appellant’s trial counsel that he unaware that the statutory presumption of intent to sell or supply did not apply to an attempt charge, the WASCA correctly concluded that the appellant’s failure to argue that any possession of the methamphetamine was for a non-sale purpose was ‘a considered and justifiable forensic decision’ to focus instead on whether the appellant’s brief contact with the drugs was too short to possess any of them ([59]). Accordingly, nothing prevented the WASCA from being satisfied beyond reasonable doubt of the appellant’s guilt of attempted possession with intent to sell or supply despite the misdirection ([60]).

In dissent, Gageler J accepted the appellant’s argument that the correct but broad definition of possession that the trial judge left to the jury (which drew an analogy between possessing drugs and borrowing a library book) allowed them a ‘pathway of reasoning’ ([76]) to find that the appellant possessed the drugs (on the basis of joint possession during the brief period he was present when the drugs were unwrapped) that did not inevitably support a ‘pathway of reasoning’ that he did so with an intent to sell or supply. Justice Nettle likewise held (at [139]) that ‘[i] 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. As well, the trial judge’s direction wrongly told the jury that intent was a matter that the accused had to disprove and that it was established by possession beyond reasonable doubt. ([141]) The latter point was also made by Edelman J (at [151]), but his dissent was on a different basis: that the judge’s direction took away an element of the offence from the jury and effectively only required them to be satisfied of the offence of attempted possession (without any intent to sell to another.) ([151]). “It is neither necessary, nor appropriate, in such a case for an appellate court to attempt to determine from the record whether the accused is guilty beyond reasonable doubt. To conclude otherwise would be to replace a trial by jury with a trial by appellate judges.” ([162]).