Head v WA

[2020] WASCA 21

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Drug offences
3. › Possession of prohibited drug
4. › Statutory defence
5. › Possession only for purpose of delivering to authorised person
6. › Whether defence raised by evidence must be left to jury even if not raised by counsel
7. › Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 6(2), s 6(3)(b)
1. Criminal Law
2. › Appeal
3. › Appeal against conviction
4. › Miscarriage of justice
5. › Failure to direct jury on available defence
6. › Whether proviso applies
7. › Whether failure to leave defence constitutes substantial miscarriage of justice irrespective of strength of prosecution case
8. › Criminal Appeals Act 2004 (WA), s 30(3)(c), s 30(4)
1. Criminal Law
2. › Trial
3. › Summing up
4. › Directions to jury
5. › Duty of trial judge to leave every lawful defence open on the evidence
6. › Whether directions as a whole effectively left defence for jury's consideration

Quick Take

Where an accused's evidence raises the statutory defence under s 6(3)(b) of the Misuse of Drugs Act 1981 (WA) — possession only for the purpose of delivering drugs to an authorised person — the trial judge must direct the jury on that defence even if neither counsel has identified it. Failure to do so constitutes a substantial miscarriage of justice that cannot be cured by the proviso, as the jury were never asked to consider the proper question on which the verdicts turned. The defence requires the accused to prove on the balance of probabilities both that possession was exclusively for the purpose of delivery to an authorised person and that all reasonable steps to deliver were taken.