Kalbasi v WA

[2016] WASCA 144

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal against conviction
3. › Misdirection
4. › Statutory presumption of intent to sell or supply
5. › Whether presumption in s 11(a) of Misuse of Drugs Act 1981 (WA) applies to attempt offence
6. › Application of proviso
7. › Whether no substantial miscarriage of justice
8. › Criminal Appeals Act 2004 (WA), s 30(4)
9. › Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 11(a), s 33(1)
1. Criminal Law
2. › Appeal against conviction
3. › Proviso
4. › Element of offence withdrawn from jury
5. › Whether court satisfied beyond reasonable doubt of guilt
6. › Whether trial process was fair
7. › Criminal Appeals Act 2004 (WA), s 30(4)
1. Criminal Law
2. › Appeal against conviction
3. › Directions to jury
4. › Possession of prohibited drug
5. › Whether expressions 'involved with' and 'dealt with' constituted misdirection on element of control
1. Criminal Law
2. › Sentencing
3. › Parity
4. › Co-offenders
5. › Assessment of relative roles in drug offending
6. › Whether sentencing judge erred in finding appellant played superior role

Quick Take

The Court held that where the only error is the erroneous application of the s 11(a) presumption to an attempt offence, the proviso will likely be applied where the quantity of drugs is so large that intent to sell or supply is inevitable once possession is established.