Kalbasi, Pouyan v The State of Western Australia [2017] HCA 7

CRIMINAL LAW, WORDS AND PHRASES
Judgment type: 
High Court of Australia
Judge(s): 
Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ
Parties: 

Kalbasi, Pouyan v The State of Western Australia

Judgment Date: 
14 March 2018
Catchwords: 

CRIMINAL LAW – Appeal against conviction – Application of proviso – Where appellant indicted for attempting to possess prohibited drug with intent to sell or supply to another – Where police replaced prohibited drug with another substance – Where trial judge and counsel erroneously assumed s11 of Misuse of Drugs Act 1981 (WA) applied deeming possession of quantity of drugs sufficient to prove possession for purpose of sale or supply to another – Where jury erroneously directed that proof of possession of substitute "drugs" would suffice to prove intention to sell or supply to another – Where intention not otherwise live issue at trial – Where sole issue at trial was appellant's possession of substitute "drugs" – Where prosecution concedes erroneous direction as to intention but contends "no substantial miscarriage of justice has occurred" – Whether "no substantial miscarriage of justice has occurred" – Whether misdirection precluded application of proviso.

WORDS AND PHRASES – "deemed intent", "error of outcome", "error of process", "fundamental defect", "fundamental error", "fundamentally flawed", "inevitability of result", "intention", "loss of a fair or real chance of acquittal", "miscarriage of justice", "negative proposition", "proviso", "reasonable jury", "substantial miscarriage of justice", "this jury".

Criminal Appeals Act 2004 (WA), s30.

Misuse of Drugs Act 1981 (WA), s6(1)(a), s11, s33(1), s34.

Citation: 
[2017] HCA 7