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2 cited instruments linked from this judgment.

What happened

In November 2010 Western Australian police, acting on intelligence, arranged for New South Wales officers to intercept a cardboard box consigned from Sydney that contained two padlocked toolboxes holding 4.981 kg of 84% pure methylamphetamine. The consignment note directed the freight company to call a mobile number ending in 731 to arrange collection. Police substituted rock salt for the drug, reconstructed the box with a listening device inside, and allowed delivery to proceed. Matthew Lothian collected the box in Perth on 16 November after his car ran out of fuel en route. He took it to premises in Falstaff Crescent, Spearwood. Approximately four minutes later the appellant, Pouyan Kalbasi, arrived by bicycle. The listening device captured sounds of the box and toolboxes being opened, locks being cut, and conversation in which Lothian recounted his fuel problems after first texting the appellant. Kalbasi asked for a pipe, sampled the substance, told Lothian "Don't move. I'll come back", and left. He rode into a nearby park, appeared to make a call, and then fled when approached by unmarked police who identified themselves. He was apprehended after a short chase. Police immediately searched the Spearwood premises. They found the opened packaging, nine bags of rock salt in a cupboard, scales, mixing bowls, MSM (a cutting agent), disposable gloves (one pair bearing Kalbasi's DNA inside and out), and other paraphernalia consistent with preparation for cutting and distribution. Kalbasi's DNA was not on other gloves linked to Lothian and his girlfriend Venetia Tilbrook. Travel records, phone data and the 731 number linked Kalbasi to the consignment. He gave no evidence at trial.

Kalbasi was indicted for attempting to possess a prohibited drug with intent to sell or supply contrary to ss 6(1)(a) and 33(1) of the Misuse of Drugs Act 1981 (WA). This was a retrial after an earlier conviction was set aside. At both the trial and retrial all parties, including experienced senior and junior counsel for the defence, laboured under the mistaken belief that s 11 of the MDA (which deems possession of more than two grams of methylamphetamine to be possession with intent to sell or supply unless the contrary is proved) applied to an attempt charge. The trial judge provided a jury aide listing the four elements, including intent. After the close of the prosecution case, defence counsel expressly agreed that if the jury found possession there was "no issue" on the fourth element. The judge directed the jury that proof of possession of more than two grams triggered the presumption, that there was "no issue in this trial about the fourth element", and that they could "give it a tick" without further deliberation. The sole issue fought at trial was whether Kalbasi exercised control or dominion over the entire consignment while present for approximately 37 minutes. Defence counsel's opening and closing speeches, and the so-called "Nissan submission", emphasised that mere presence or knowledge was insufficient and that the prosecution had not proved control. No positive case was advanced that Kalbasi was there only to sample a small quantity for personal use. He was convicted.

On appeal to the Court of Appeal (McLure P, Mazza and Mitchell JJA) the State conceded the direction was wrong in law following Krakouer v The Queen (1998) 195 CLR 202, which held s 11 inapplicable to attempts. The Court of Appeal nevertheless dismissed the appeal under s 30(4) of the Criminal Appeals Act 2004 (WA), the local form of the common-form proviso. McLure P held that once the jury found possession of nearly 5 kg of high-purity drug, conviction with the requisite intent was inevitable. Mazza and Mitchell JJA distinguished errors of "process" and "outcome", found the misdirection was not a fundamental process error, and concluded that guilt was proved beyond reasonable doubt on the whole record.

The High Court granted special leave limited to the proviso question. By majority (Kiefel CJ, Bell, Keane and Gordon JJ) the Court dismissed the appeal, holding that the misdirection did not occasion a substantial miscarriage of justice. Gageler, Nettle and Edelman JJ dissented in separate reasons, each concluding that the removal of the intent element from the jury's consideration constituted a fundamental defect that prevented the appellate court from being satisfied that conviction was inevitable or that the jury's verdict might not have differed.

Why the court decided this way

The majority began by reaffirming Weiss v The Queen (2005) 224 CLR 300 as the governing authority. They rejected the appellant's invitation to qualify or overrule Weiss or to return to the pre-Weiss "lost chance of acquittal" test. The statutory text of s 30(3) and (4) of the Criminal Appeals Act requires the Court of Appeal to allow an appeal if there has been a wrong decision on a question of law or a miscarriage of justice, but permits dismissal if no substantial miscarriage has occurred. Weiss resolves the apparent tension by committing the assessment to the appellate court itself, which must decide whether, notwithstanding the error, the accused's guilt was proved beyond reasonable doubt on the admissible evidence actually led at the trial that was had. The appellate court does not ask what a hypothetical jury would have done. Concepts of "inevitability" or "lost chance" are useful only as pointers to the high criminal standard and the natural limitations of proceeding on the record; they are not alternative tests.

Crucially, Weiss requires consideration of the nature and effect of the error in every case. Some errors (contested credibility cases, failure to leave a defence, or misdirection on a live element) may prevent the appellate court from being able to reach the requisite satisfaction. The majority held that the present misdirection was not of that character. The trial had been conducted on the explicit footing that the only dispute was possession. Defence counsel had conceded that if possession in the legal sense was proved, the inference of intent given the volume would follow, and had agreed that the jury need not concern itself with element four. The "Nissan submission" was directed only to control, not to a limited-purpose sampling hypothesis. There was no evidence raising the possibility that Kalbasi possessed only a small quantity for personal use. The prosecution case, the listening device evidence, the DNA on the inside of the gloves, the flight, and the commercial quantity and purity all pointed to joint control of the entire consignment for onward distribution.

The majority distinguished Krakouer, where the misdirection had reversed the onus on intent in a conspiracy count and intent had been live. They also distinguished Handlen v The Queen (2011) 245 CLR 282 (trial conducted on a legal basis that did not exist) and Quartermaine v The Queen (1980) 143 CLR 595 (failure to direct on an essential element that the jury had not been asked to consider). Here the jury was correctly instructed on all four elements but told, erroneously, that the fourth was proved if the third was. Because the fourth was not live and the facts once possession was accepted compelled the intent conclusion, the error did not deprive Kalbasi of a chance of acquittal that was fairly open. The Court of Appeal had been entitled to infer from the verdict, the way the case was run, and the record that the jury must have found possession of the whole consignment. From that finding intent followed inevitably. Accordingly no substantial miscarriage of justice had occurred and the proviso was properly applied.

The dissenters reached the opposite conclusion by emphasising that the jury had been positively told to "give it a tick" on an essential element and that the broad directions on possession (including temporary and limited-purpose possession illustrated by the library book example) left open pathways to a possession finding that were inconsistent with the intent required for the charged offence. They viewed the removal of the element as a fundamental defect amounting to Kalbasi not being tried for the offence charged.

Before and after state of the law

Before Kalbasi the law was settled in two respects but uncertain in application. Krakouer had clearly held that s 11 of the MDA has no application to attempt charges; the presumption cannot deem intent on an attempt to possess. Weiss had authoritatively reframed the proviso inquiry away from hypothetical jury predictions toward the appellate court's own satisfaction of guilt on the actual record, while insisting that the nature of the error must always be considered. Intermediate courts, however, had begun to treat the Weiss "negative proposition" (that the proviso cannot be applied unless the appellate court is satisfied of guilt beyond reasonable doubt) as if it were both necessary and sufficient, and had formalised a binary "process" versus "outcome" taxonomy derived from Hughes v The State of Western Australia [2015] WASCA 155. That taxonomy risked elevating the negative proposition into a complete test and marginalising the statutory question.

Kalbasi confirms Weiss without qualification and clarifies its application in the specific context of misdirection on a non-live element. The majority expressly disapproved treating "process" and "outcome" as rigid compartments that allow an appellate court to leap from a finding of proved guilt to dismissal without considering whether the error deprived the court of the ability to make that finding justly. The decision reinforces that the conduct of the trial, including forensic concessions and the issues actually litigated, forms part of the "whole record" against which the proviso is applied. It also confirms that a misdirection reversing or removing an onus on a non-live issue will not always preclude the proviso, provided the appellate court can be satisfied that the element was proved beyond reasonable doubt by the facts necessarily found by the jury.

After Kalbasi appellate courts must still begin any proviso analysis by identifying the precise error and its capacity to affect the jury's consideration of live issues. The decision has not altered the underlying Weiss framework but has narrowed the circumstances in which an error on an element will automatically be characterised as fundamental. It has also underscored the importance of the trial record as it actually unfolded rather than as it might have unfolded had counsel appreciated the correct legal position.

Key passages with plain-English translation

The joint judgment contains several passages that encapsulate the reasoning. One states: "Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard." In plain English, the High Court is saying that judges cannot simply declare "the evidence looks strong so the mistake does not matter"; they must always examine exactly what went wrong and whether that wrong prevents them from fairly deciding guilt themselves on the existing record.

Another key passage reads: "The 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 and, perhaps, Tilbrook) over, the substitute 'drugs' in the cardboard box. The 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." Translation: because everyone at trial treated intent as automatic once possession of that enormous, high-purity haul was proved, and because the defence never suggested Kalbasi was only there for a personal sample, the appellate court could safely conclude that the jury's possession finding carried the intent finding with it. The mistake therefore changed nothing of substance.

A further passage addresses the forensic concession: "Senior counsel's evidence is that he would not have consented to a direction that intention was not in issue had he appreciated that s 11 of the MDA did not apply... Senior counsel did not say that he would have conducted the appellant's case differently in any other respect... McLure P, rightly, concluded that against this background the inference to be drawn is that a considered and justifiable forensic decision was made not to run a case that the appellant's conduct was consistent with an attempt to possess a small quantity of the drug for his own use." Plain English: even though counsel later said he would not have agreed to the direction, he never suggested he would have run a different positive case. The trial judge and Court of Appeal were entitled to treat the concession as a deliberate tactical choice, not an accident that vitiated the whole trial.

These passages illustrate the majority's insistence on fidelity to the actual trial that occurred rather than a hypothetical one that might have been run with perfect legal knowledge.

What fact patterns trigger this precedent

Kalbasi is triggered when three conditions coincide. First, there must be a misdirection or wrongful removal of an element of liability, commonly by erroneous application of a statutory presumption or reversal of onus. Second, that element must not have been "live" at trial: the parties must have conducted the case on the explicit or implicit understanding that proof of one element resolved the other, typically evidenced by concessions in open court, jury aides, or closing addresses that narrow the dispute to a single factual contest (here, control). Third, the appellate court must be able to conclude on the whole record, including the verdict itself and the circumstantial strength of the case, that the facts necessarily found by the jury on the live issue compel the conclusion on the misdirected issue beyond reasonable doubt.

Typical triggers therefore include large-scale commercial drug importations or possessions where the quantity alone makes innocent intent implausible, cases in which defence counsel has positively conceded an element for tactical reasons, and retrials where the defence has abandoned lines run at an earlier trial (as Kalbasi had given evidence of personal-use sampling at his first trial but not the second). The precedent does not apply where the misdirected element was actively contested, where credibility is central, where a partial defence was not left to the jury, or where the record leaves open a rational pathway to acquittal consistent with the erroneous direction. It is particularly inapplicable where the trial has been run on a wholly wrong legal basis (Handlen) or where the jury has never been asked to consider the real offence charged (Quartermaine).

How later courts have treated it

Subsequent Western Australian Court of Appeal decisions have treated Kalbasi as confirming and refining rather than revolutionising Weiss. In The State of Western Australia v Rayney (No 3) [2019] WASCA 78 the Court cited Kalbasi for the proposition that the proviso analysis must always begin with the precise nature of the error and its capacity to affect the jury's consideration of live issues; a misdirection on a non-contentious element was held not to produce a substantial miscarriage where the remaining issues had been fairly tried. In drug cases such as R v Nguyen [2020] WASCA 79 the Court has repeatedly invoked the Kalbasi emphasis on the conduct of the actual trial, refusing to speculate about unadvanced "sample for personal use" hypotheses where they were not put to the jury.

Interstate courts have also embraced the decision. Victorian and New South Wales intermediate appellate courts have cited Kalbasi alongside Weiss and Filippou v The Queen (2015) 256 CLR 47 for the proposition that the negative proposition is not a sufficient condition and that rigid process/outcome taxonomy should be avoided. In Bakar v The Queen [2021] NSWCCA 212 the New South Wales Court of Criminal Appeal distinguished Kalbasi on the basis that the intent element there had been live and the quantity of drug far smaller, so that a sampling hypothesis remained rationally open. Federal Court appeals involving Commonwealth drug offences have used Kalbasi to emphasise that forensic concessions by experienced counsel carry weight in the proviso analysis.

Overall, Kalbasi has been followed rather than distinguished in the majority of reported decisions. It has not been criticised or confined. Later courts treat it as the leading modern High Court authority on the application of the proviso to misdirections on non-live elements in circumstantial cases.

Still-open questions

Several questions remain unresolved after Kalbasi. First, how far counsel's post-trial affidavits explaining forensic decisions can be taken into account remains unclear. The majority noted the desirability of receiving such evidence had not been debated but treated the affidavit as unchallenged; however, they did not lay down any general rule about when such evidence is admissible or what weight it bears when it seeks to rewrite the trial.

Second, the precise boundary between a "non-live" element and one that is merely not the subject of positive contradictory evidence is unsettled. The majority accepted that a trial judge is not required to direct on an element that is not in issue, yet the dissenters emphasised that counsel cannot concede a matter of law to the accused's disadvantage. Future cases will need to determine when a concession induced by mutual legal error crosses into the Quartermaine category of the jury never having been asked to decide the real offence.

Third, the interaction between Kalbasi and jury directions on "extended" or "temporary" possession remains open. The dissenters placed heavy reliance on the library-book analogy; the majority held it was not apt to mislead on the facts. In future cases with less overwhelming quantities or different circumstantial evidence, the breadth of possession directions may again become decisive.

Finally, the continuing utility of the "process" and "outcome" language endorsed in Hughes but criticised in Kalbasi has not been definitively settled. While the majority accepted such classifications "may or may not be helpful", intermediate courts continue to use them. Whether a future High Court will expressly disapprove the Hughes taxonomy remains to be seen. Until then, practitioners must treat Kalbasi as a reminder that the statutory question is always whether there has been a substantial miscarriage of justice, judged by reference to the trial that actually occurred.

1. The offender was the accused (identity);
2. The substance with which the charge is concerned is a prohibited drug;
3. The accused attempted to possess that prohibited drug; and
4. The accused intended to sell or supply the prohibited drug, or any part of it, to another. 'to possess' - includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings." The judge raised with defence counsel the question of the directions to be given on the element of intention: "[TRIAL JUDGE]: So what do we say about the fourth element? [DEFENCE COUNSEL]: Well, if my client is found to be in possession, as I've put - if he's in possession of it, he's not in possession of it - the inference would be that he's in possession of it, intending to sell or supply the prohibited drug, given the volume. If he's found to be in possession, there's no - - - [TRIAL JUDGE]: Can I tell the jury, [counsel], that I can go to presumptions, if you wish, but that there is no contest, there is no issue in this trial. If they are satisfied beyond reasonable doubt that your client was in possession in the legal sense of the drugs at the relevant time in the relevant place, then they need not concern themselves with element 4. There's no contest about that because your client doesn't seek to prove otherwise, given the deeming provision. The issue for the jury is to be found in relation to the third element. [DEFENCE COUNSEL]: Yes, that's correct, your Honour." The summing-up The jury was instructed, conformably with the "jury aide", that the offence contained four elements, the fourth of which required proof of the appellant's intention to sell or supply the prohibited drug, or part of it, to another. The jury was directed that each was a separate element and that, in respect of each element, it must be satisfied beyond reasonable doubt before a verdict of guilty could be returned. The directions concerning proof of possession in law were lengthy. The judge explained that possession may be established by proof of actual physical custody or by proof that the appellant exercised control and dominion over the "intended drugs" to the exclusion of others, except those with whom he might have been acting jointly. In this connection, the jury was instructed that it is possible, in law, to possess something temporarily and for a limited purpose. His Honour illustrated the point saying: "[I]f 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." His Honour concluded the directions on proof of the element of possession by telling the jury that: "So members of the jury, with respect to possession, you must be satisfied that in the way I have described [the appellant] had some control over the drugs in [the Falstaff Crescent premises] at the relevant time even though Mr Lothian may also have had control or possession of the same drugs at the same time. You must be satisfied that the [appellant] knew that the drugs were in fact prohibited drugs in the way I have already directed you. You must be satisfied that he did something with respect to those drugs to indicate control over the drugs at the relevant point in time, and you must be satisfied that it was his intention in doing what he did to in fact have control or at least exercise control or dominion over the drugs at that point in time." Turning to proof of the fourth element, his Honour said this: "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. You must be satisfied beyond reasonable doubt about the fourth element. You do not need to concern yourself with where the drugs might have gone, how they might have got there, when they might have been moved or whatever. It's simply not relevant to your deliberations for the purpose of this trial. The fourth element is proved beyond reasonable doubt and you should give it a tick." The appellant's first contention: the misdirection in the context of the directions on possession One way in which the appellant puts his case in this Court is to direct attention to the breadth of the directions on proof of the element of possession. He argues that the effect of the misdirection is to be assessed in the context of directions that the State was not required to prove that he knew the quantity or purity of the methylamphetamine and which did not suggest that the State must prove his possession of the whole of the substituted "drugs". He points to the trial judge's use of expressions such as "doing something with" in explaining the concept of control. He submits that the jury may have found he attempted to possess the drugs based on satisfaction that he was exercising control over some part of the substitute "drugs". In this connection, he also points to the direction that a person may possess a thing for a temporary, limited purpose, as in the example of borrowing a book from the library. The appellant's argument is that had his trial not been conducted on the understanding that the s 11 presumption was enlivened, it would have been necessary for the prosecution to exclude the reasonable possibility that he was in possession of a small quantity of the "drugs" as a sample with a view to purchase for his own use. He challenges the Court of Appeal's conclusion that it was open to reason from the verdict that he was proved to have been in possession of the whole of the "drugs" and to reason from this that his intention to sell or supply some 4.981 kg of methylamphetamine to another was established beyond reasonable doubt. In the alternative, by analogy with cases in which there has been a failure to leave a defence or partial defence, the appellant submits that, regardless of the apparent strength of the prosecution case, he has been deprived of the jury's consideration of a hypothesis consistent with innocence. The first way in which the argument is put requires reference to the appellant's unsuccessful challenge to the directions on possession in the Court of Appeal. His second ground of appeal in that Court contended that "the learned trial judge erred in his directions regarding possession". The appellant was refused special leave to challenge the Court of Appeal's rejection of this ground. The appellant submits that his argument does not canvass that refusal because in this Court he is not asserting legal error in the directions on possession. The submission is apt to downplay the nature of the error for which he contended in the Court of Appeal. That error was particularised by reference to the judge's use of the expressions "'dealing with', 'involved with' and 'doing [something] with' the drugs", all of which were said to be apt to mislead in that a person may deal with a drug in ways falling short of control. The argument referenced the judge's illustration of the possession of a library book and the on-lending of the book to a friend. It was submitted on the appellant's behalf that his counsel had invited the jury's consideration of the possibility that the appellant may have possessed a small quantity of the "drug" for the purpose of sampling it with a view to perhaps buying some of it later. The submission appears to have been based on the Nissan submission. The Court of Appeal rejected the challenge that the directions on possession were misleading. Their Honours were satisfied that, when read as a whole, the directions focussed on proof of the appellant's possession of the "intended drugs" and not some part of the whole. Their Honours also rejected that the appellant's case at trial had been advanced even faintly on the footing that he may have been in possession of a sample of the "drug" with a view to the purchase of a small quantity for his own use. As McLure P observed, the purpose and effect of the Nissan submission was that a person does not "control" a thing merely by being present and looking at the thing. The appeal in this Court is confined to the determination of whether the Court of Appeal was wrong to dismiss the appeal under the proviso. The correctness of the Court of Appeal's assessment that the error did not occasion a substantial miscarriage of justice is to be determined upon acceptance of their Honours' rejection of the contention that the directions on possession were misleading. To the extent that the appellant's argument in this Court - that the directions on possession, while correct in law, were apt to mislead ­­- differs from his challenge below, it must be rejected. 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. There was nothing in the evidence to suggest that the control over the "drug" exercised by the appellant differed in scope or purpose from that exercised by Lothian. Indeed, the relationship between the appellant and Lothian was, on the evidence, one in which the appellant gave, and Lothian accepted, directions relating to their activities. The case was fought on the sole basis that the appellant's involvement in dealing with the "drug" in the Falstaff Crescent premises was eloquent of his joint possession with Lothian of the whole. It is simply wrong to argue, as the appellant does in this Court, that the trial judge's direction to the jury contemplated a finding of possession of only part of the "intended drug": in directing the jury "that the accused intended to sell or supply the prohibited drug or any part of it to another", the trial judge was referring to the element of intention to sell or supply. The appellant's second contention: the misdirection precluded the application of the proviso Krakouer As earlier explained, in the Court of Appeal the State conceded that the instruction as to the operation of the s 11 presumption was wrong in law. It relied on Krakouer for the submission that the error did not exclude the proper application of the proviso and it pointed to senior counsel's concession that if possession was proved there was no issue as to proof of intention. It is necessary to refer to Krakouer in some detail to explain the State's reliance on it and the appellant's response to that reliance. Krakouer and a man named Calder were charged with conspiring to possess a quantity of methylamphetamine with intent to sell or supply it to another and with the attempted possession of a quantity of methylamphetamine with that intention. A car was consigned from Victoria to a depot in Western Australia. The police examined the car and found a cavity in each front door containing packages of methylamphetamine having a total weight of 5.3 kg. The police substituted flour for the drugs and replaced the packages in the door cavities along with a listening device. Calder collected the car from the depot and Krakouer followed him as he drove to their destination. Shortly after their arrival, the police raided the premises and arrested Krakouer and Calder. At the time one of the packages had been removed from the door cavity. Krakouer did not give or call evidence at the trial. The prosecution did not rely on s 11 of the MDA at Krakouer's trial. Nonetheless, the jury was instructed of the presumption that a person in possession of more than two grams of methylamphetamine is presumed to intend to sell or supply it to another. The prosecutor and defence counsel each asked the judge to withdraw the direction but he declined to do so. Krakouer was decided before Weiss. At the time, the determination of the appeal was subject to the common form provision then found in s 689(1) of the Criminal Code (WA). In their joint reasons, Gaudron, Gummow, Kirby and Hayne JJ rejected the contention that the misdirection involved a fundamental flaw of the kind discussed in Wilde v The Queen. Their Honours were persuaded, however, that the misdirection did occasion a substantial miscarriage of justice in the circumstances of the case. This conclusion took into account the necessity for the prosecution to prove that the conspiratorial agreement encompassed the intention to sell or supply: foresight that another might sell or supply the drugs to others would not suffice to establish liability for conspiracy. Significantly, in light of the issues in this appeal, their Honours considered that had the charge of attempt to possess methylamphetamine with intent to sell or supply stood alone, and had the jury been satisfied to the criminal standard that Krakouer had attempted to possess the drugs, it may have been possible to conclude that the evidence was consistent only with an attempt to possess with the requisite intention. A further consideration which told against dismissal under the proviso was that the misdirection had not been considered unimportant by trial counsel. Their Honours cautioned that "[o]ther considerations may well have arisen if no exception had been taken at trial". Here the appellant adduced evidence in the Court of Appeal in answer to the State's submission that the misdirection had not occasioned a substantial miscarriage of justice in light of the conduct of the trial. Senior and junior counsel who appeared on the appellant's behalf at the trial deposed to having been unaware that s 11 of the MDA did not apply to a charge of attempting to possess prohibited drugs contrary to s 6(1)(a) of the MDA. In his affidavit, senior counsel stated: "I believe this was an oversight on my part. Had I recognised that section 11 did not apply to the charge, I believe I would not have acceded to the direction to the jury that intention was not in issue." The desirability of receiving evidence of counsel's reasons for forensic decisions does not appear to have been debated in the Court of Appeal and was not addressed in this Court. The evidence is unchallenged. The appellant relies on it to distinguish his trial from the trial postulated by the plurality in Krakouer: at the appellant's trial the judge, the prosecutor and defence counsel all were acting under the same mistaken assumption. In the result, he submits that as a matter of substance, he was tried for the lesser, simple offence under s 6(2), which does not require proof of an intention to sell or supply the drugs possessed to another. He argues that the misdirection is an error of the kind in Handlen v The Queen. Alternatively, he argues it is an error of the kind in Quartermaine v The Queen. Handlen and Quartermaine In Handlen the accuseds' trial was conducted upon the common, mistaken, assumption that liability would be established on proof that each was a party to a joint criminal enterprise to import a commercial quantity of border-controlled drugs. At the date of the trial, however, the general principles of criminal responsibility for offences against Commonwealth law made no provision for liability as a participant in a joint criminal enterprise. It was held that the intermediate appellate court erred in dismissing the accuseds' appeals against their convictions under the proviso. The holding took into account that the trial had been conducted on a basis for which the law did not allow, on evidence which should not have been adduced, and the verdicts did not establish that the jury must have been satisfied of the facts necessary to establish guilt. In Quartermaine the accused was charged with discharging a firearm with intent to kill a man named Wynne contrary to s 283(2) of the Criminal Code (WA). An element of liability for the offence required proof that the accused's act was of such a nature as to be likely to endanger human life. The trial judge omitted to direct the jury of this requirement. Gibbs J, writing for the majority, observed that the jury must have found that the accused discharged the rifle, probably at Wynne, and that it was a short step to hold that in so doing he had done an act of such a nature as to be likely to endanger human life. Indeed, his Honour considered that there was much to be said for the view that the jury could not reasonably have made any other finding. Nonetheless, his Honour reasoned that the jury had not been asked to consider whether the accused committed the offence with which he was charged: it had returned a verdict of guilty of a particular crime without having considered whether that crime was committed. His Honour held that the verdict could not be sustained by concluding that the jury would or should have returned the same verdict if it had considered the proper question. None of the factors which were critical to the decision in Handlen are present in this case. The appellant was tried for an attempt to commit an offence contrary to s 6(1)(a) of the MDA. The jury was correctly instructed of the four elements which together make up liability for that offence. The error was in instructing the jury of the s 11 presumption on the trial of a charge of attempted possession of prohibited drugs with intent to sell or supply to another. It is less clear the extent to which if at all the balance of the direction, including that the jury should give the fourth element a tick, involved legal error. The omission to direct on an element of liability as in Quartermaine, or a direction which effectively removes proof of an element from the jury's consideration, may not amount to legal error, much less occasion a substantial miscarriage of justice, if proof of the element was not a live issue in the trial. It may be accepted that in any case in which an appellate court concludes that an accused was "not in reality tried for the offences for which he was indicted" there will have been a substantial miscarriage of justice within the meaning of the proviso. And it may also be expected that in such a case there will be a contest as to whether that conclusion is appropriate: to say that an accused has not in reality been tried for the offence for which he or she has been indicted is a vivid way of expressing the conclusion that a misdirection as to the elements of an offence amounts to a substantial miscarriage of justice for the purposes of the proviso, but it does not aid the analysis of whether the error is of such gravity as to warrant that conclusion. A misdirection upon a matter of law is always contrary to law, and it is always a departure from the requirements of a fair trial according to law. But sometimes a misdirection on a matter of law will prevent the application of the proviso; and sometimes it will not. Krakouer was a case of a misdirection on a matter of law which reversed the onus of proof in relation to the intent with which the "drugs" were possessed, effectively requiring the jury to find that element established; and yet, were it not for other circumstances of the case, the proviso may have been applied. The question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred. In a trial where no issue arises as to proof of a particular element of the offence charged, and the accused through his or her counsel consents to the removal of that element from the jury's consideration, then it may be that no miscarriage of justice at all will have occurred because of that removal. Conclusion Senior counsel's evidence is that he would not have consented to a direction that intention was not in issue had he appreciated that s 11 of the MDA did not apply to a charge of attempted possession. Senior counsel did not say that he would have conducted the appellant's case differently in any other respect had he understood the correct position. It is to be observed that the conduct of the appellant's defence at his re-trial was not a tabula rasa: McLure P noted that at the first trial the appellant gave evidence that he went to the Falstaff Crescent premises to purchase drugs for personal use. McLure P, rightly, concluded that against this background the inference to be drawn is that a considered and justifiable forensic decision was made not to run a case that the appellant's conduct was consistent with an attempt to possess a small quantity of the drug for his own use. The forensic decision was to squarely focus the jury's attention on the capacity of the State's case to rise above admitted circumstances of suspicion and prove beyond reasonable doubt that the appellant was exercising control and dominion over the "drugs" during the 37 minutes that he spent inside Lothian's home. In the circumstances, it was not wrong for the Court of Appeal to reject the submission that the misdirection was an error of a kind that precluded the application of the proviso by analogy with Quartermaine or with cases in which there has been a failure to leave a defence for the jury's consideration. Their Honours were right to hold, consistently with the plurality's analysis in Krakouer, that the misdirection was not in any other respect an error of a kind which precludes the application of the proviso. There was no basis in the evidence or in the way the appellant's case was advanced which left open that he may have been in possession of some lesser part of the substitute "drugs" with a view to purchase for his own use. The 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 and, perhaps, Tilbrook) over, the substitute "drugs" in the cardboard box. The 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. And their Honours were correct to hold that the misdirection did not occasion a substantial miscarriage of justice. Order For these reasons there should be the following order: Appeal dismissed.

1. The offender was the accused (identity);
2. The substance with which the charge is concerned is a prohibited drug;
3. The accused attempted to possess that prohibited drug; and
4. The accused intended to sell or supply the prohibited drug, or any part of it, to another. 'to possess' - includes to control or have dominion over, and to have the order or disposition of, and inflections and derivatives of the verb 'to possess' have correlative meanings." Proceedings before the Court of Appeal Kalbasi appealed to the Court of Appeal on six grounds, all but one of which were rejected. Relevantly, ground 1 was that the trial judge misdirected the jury as to the application of s 11 of the Misuse of Drugs Act. The Court of Appeal (McLure P, Mazza and Mitchell JJA) accepted that the direction was contrary to law but held that it was not productive of a substantial miscarriage of justice. McLure P reasoned that the sole live issue between the parties at trial was whether Kalbasi was in control of the intended drugs (jointly with Lothian), and emphasised that: "[I]t was no part of the defence case in opening (or thereafter) that [Kalbasi's] conduct in going to Lothian's house and his activities therein were consistent with an intention to purchase a small quantity of methylamphetamine for his own use, subject to satisfying himself (by testing or sampling) as to its quality." Her Honour concluded: "[O]nce the jury found that [Kalbasi] was in possession of the intended drugs, a finding that he was in possession with an intention to sell or supply to another was, having regard to the very large quantity of high purity drugs, inevitable. I am satisfied that the jury verdict of guilty is correct, that the s 11 error and [Kalbasi's] concession [that s 11 applied] could and should have no effect on the verdict and that the retrial was fair in all respects. Accordingly, there has been no substantial miscarriage of justice." In a separate joint judgment, Mazza and Mitchell JJA reasoned differently but to the same conclusion. Their Honours began with the observation that Weiss v The Queen remains the leading authority on the proviso and that, as Weiss had been interpreted by the Court of Appeal in Hughes v The State of Western Australia, it requires consideration of two aspects: "the outcome aspect" and "the process aspect". In Hughes, the outcome aspect was said to involve the appellate court deciding for itself on the basis of the whole of the record of the trial whether, apart from the error, the accused was proved guilty beyond reasonable doubt, and "whether the error ... would, or at least should, have had no significance in determining the verdict that was returned by the trial jury". The process aspect was said to direct attention to whether there had been such a departure from the prerequisites of a fair trial as to constitute a substantial miscarriage of justice. Dealing first with the outcome aspect, Mazza and Mitchell JJA stated that, upon an examination of the whole of the evidence, they were "satisfied beyond reasonable doubt of [Kalbasi's] guilt of the offence with which he was charged". They summarised their conclusions in that regard thus: "[I]n the 37 minutes that [Kalbasi] was in the premises at Falstaff Crescent, the cardboard box containing a very large and valuable consignment of 'drug' was opened, the bags were removed from the toolboxes, preparations were made to cut the drug, [Kalbasi] sampled it and, when he saw that there was a problem, he undertook to deal with it. ... We are satisfied that the evidence [of flight] established that [Kalbasi] did flee from [the police], and that he did so out of a consciousness of guilt for the offence with which he was charged. ... While it is the case that [Lothian], and perhaps [Tilbrook], exercised control over the drug, we are satisfied beyond reasonable doubt that [Kalbasi] also exercised control. We are further satisfied beyond reasonable doubt that he exercised control over the entire 4.981 kg of 'methylamphetamine' and not over some much smaller quantity consistent with a mere sample. Given the quantity and value of the drug, it is inconceivable that [Kalbasi] would possess them without an intention to sell or supply them to another." Turning then to the process aspect, the plurality observed that, in contradistinction to Krakouer, in this case the charge of attempting to possess the drug with intent to sell or supply stood alone and the sole issue at trial was possession and, in particular, whether Kalbasi controlled the "drug" in the cardboard box. It followed, their Honours reasoned, that, although the misdirection as to the application of s 11 was a misdirection as to an element of the offence charged, it was not analogous to a failure to leave a defence to the jury, and the trial was not flawed in such a way as to preclude the application of the proviso. Their Honours concluded: "Once [Kalbasi] was found to have possessed the 4.981 kg of 'methylamphetamine' it was inconceivable that the jury could not have been satisfied beyond reasonable doubt that [Kalbasi] possessed the substance with an intent to sell or supply it to another." The parties' contentions Before this Court, Kalbasi contended that the Court of Appeal erred in its application of Weiss. Counsel for Kalbasi submitted that the central consideration in the application of the proviso is the nature of the error, misdirection or complaint in issue, and that the Court of Appeal erred by failing sufficiently to take the nature of the error into account. In particular, by dividing consideration of the application of the proviso into outcome and process aspects, and dealing with the outcome aspect separately, the plurality determined the outcome aspect solely on the basis that they were satisfied beyond reasonable doubt that Kalbasi was guilty. By so proceeding, the plurality failed to take into account that the misdirection denied Kalbasi procedural fairness or at least deprived him of the right of having a substantial part of his case decided by the jury, namely, the possibility that he may have attended the Falstaff Crescent premises merely to sample the "methylamphetamine" and so possessed no more than a small quantity of the substance for that limited purpose. Counsel for Kalbasi accepted that the trial judge's directions were adequate in relation to possession as such. But counsel contended that they were of such breadth that there could be no certainty as to what the jury may have concluded regarding the amount possessed or, therefore, as to whether the jury would have been satisfied of Kalbasi's intent to sell or supply it. In response, the State of Western Australia as respondent to the appeal contended that the plurality were correct in following the Hughes two-part approach to the application of the proviso and correct in their application of the proviso for the reasons which the plurality gave. The sole issue at trial was whether Kalbasi attempted to possess the whole of the quantity of the prohibited drug. It was not suggested that Kalbasi may have possessed some part of the "drug" and not the remainder. His defence was that he had not possessed any. Consistently with that being so, it was said that the effect of the trial judge's directions was that the jury were to consider whether they were satisfied beyond reasonable doubt that Kalbasi had control or dominion, and intended to have control or dominion, over the whole of the "drug". In those circumstances, the s 11 misdirection was irrelevant. It did not bear on the jury's consideration of whether or not Kalbasi had possessed the whole of the "drug". It went only to the question of whether he possessed the whole of the "drug" for the purposes of sale or supply to another. And, given the large quantity of "drug" involved, it was impossible to suppose that Kalbasi had possessed it for any purpose other than sale or supply to another. The meaning of Weiss Weiss laid down three fundamental propositions. First, in applying the proviso, an appellate court must itself decide whether a substantial miscarriage of justice has occurred. Secondly, the task is not an exercise in speculation or prediction: it is an objective inquiry not materially different from other appellate tasks and it is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial. Thirdly, the standard of proof is proof beyond reasonable doubt. Those three fundamental propositions are well known and well understood. Weiss also provided a detailed explication of those three fundamental propositions which, however, it sometimes appears is not as well known or understood. For present purposes, it may be summarised thus: (1) There is no single universally applicable description of what constitutes a substantial miscarriage of justice. (2) In each case, it is a necessary, but not a sufficient, condition of the application of the proviso that the appellate court be satisfied beyond reasonable doubt on the whole of the record that the accused was proved guilty of the offence of which he or she was convicted. (3) The fact that a jury has returned a verdict of guilty is relevant, but it is necessary to keep in mind the burden and standard of proof. (4) References to inevitability of result or the loss of a fair or real chance of acquittal are useful in emphasising the high standard of proof of criminal guilt. They are also useful as pointers to the natural limitations that attach to proceeding wholly or substantially on the record. (5) There are cases where it is possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the jury. (6) Equally, there are cases, perhaps many cases, where the natural limitations of proceeding wholly or substantially on the record require the appellate court to conclude that it cannot be satisfied that a substantial miscarriage of justice has not occurred. (7) There may also be cases where, although the appellate court is satisfied on the whole of the record that the accused has been proved guilty beyond reasonable doubt, it is not proper to dismiss the appeal. Subsequent cases Decisions of this Court since Weiss have affirmed and elucidated those insights. For example, in AK v Western Australia, Gummow and Hayne JJ observed that Weiss identified one circumstance in which the proviso cannot be engaged: where the appellate court is not persuaded that the evidence properly admitted at trial proved the accused guilty beyond reasonable doubt of the offence of which he or she was convicted. Their Honours emphasised that that negative proposition must not be treated as if it were a positive statement of what suffices to show that no substantial miscarriage of justice has occurred. Similarly, in Baiada Poultry Pty Ltd v The Queen, the plurality made the point that what Weiss laid down was a negative proposition that the proviso cannot be engaged unless the appellate court is persuaded that the evidence properly admitted at trial established the guilt of the accused beyond reasonable doubt. It is not a sufficient condition of the application of the proviso. Hence, the fact that it is possible to articulate a chain of reasoning which would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice occurred. In Pollock v The Queen, the Court took up the point made in Weiss that references to the loss of a fair or real chance of acquittal are sometimes useful in emphasising the high standard of proof of criminal guilt and as pointers to the natural limitations that attach to proceeding wholly or substantially on the record. The Court resolved the appeal accordingly, in light of the way in which the parties had put their cases at trial, on the basis that "it [could not] be said that the misdirection did not deprive the appellant of a chance fairly open to him of being acquitted". In Castle v The Queen, the Court rejected the application of the proviso in accordance with the recognition in Weiss that, in some cases, the natural limitations of proceeding on the record preclude a conclusion that guilt was proved beyond reasonable doubt. In Baini v The Queen, the Court emphasised the significance that Weiss attributed to notions of inevitability of result and loss of a fair or real chance of acquittal in drawing attention to the high standard of proof of criminal guilt and as pointers to the natural limitations that attach to proceeding wholly or substantially on the record. As the majority said in Baini, to ask whether an error "could have reasonably made a difference" or to ask whether an error or irregularity is "fundamental" is simply to ask in different language the statutory question which must be answered: whether there has been a "substantial miscarriage of justice". Another way to express the same question is to ask: "[w]hether, having regard to the whole of the evidence at trial, the [appellate court] could conclude that the verdicts the jury returned ... were inevitable (because the jury could not have entertained a reasonable doubt)". By contrast, in Reeves v The Queen, the Court reiterated the point made in Weiss that there are cases where, upon a consideration of the whole of the record, it is possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the jury. Hence, where a legal error made at trial consists of a misdirection relating to an element of liability, the significance of the verdict is to be assessed in light of the capacity of the misdirection to have led the jury wrongly to reason to guilt. In Reeves, it was concluded that the misdirection could not, in that case, have distracted the jury from properly determining the one issue that was presented for consideration. More generally, since Weiss each of this Court's decisions regarding the proviso has confirmed and reinforced the essential significance of Weiss that there is no single universally applicable description of what constitutes a substantial miscarriage of justice. Counsel for Kalbasi submitted that some of the decisions of this Court since Weiss have significantly departed from the approach to the proviso dictated by Weiss - substituting pre-Weiss conceptions of whether it was open to a jury to acquit or whether conviction was inevitable - with the result that the present status of Weiss is unclear or at least not easy to reconcile with those subsequent decisions. That submission should be rejected. Of course, Weiss must be applied in light of what this Court has said about it in subsequent decisions. But there has not been anything said in subsequent decisions that was not grounded in Weiss. By and large, where difficulties have arisen in the application of Weiss they have been the result of intermediate appellate courts mistreating the "negative proposition" that the proviso cannot be applied unless the appellate court is satisfied beyond reasonable doubt upon the whole of the record that an accused was proved guilty as if it were a positive, sufficient condition of the application of the proviso. The application of Weiss in light of subsequent cases As was held in Weiss, it remains that the starting point for an appellate court's consideration of the application of the proviso is for the appellate court to undertake the task of deciding for itself upon the whole of the record whether the accused was proved guilty beyond reasonable doubt of the offence of which he or she was convicted. And as was stressed in Weiss, that requires the appellate court to undertake an objective consideration of the evidence in light of the issues presented at trial in order to determine whether the evidence adduced at trial did or did not establish guilt beyond reasonable doubt. It also remains that, in some cases, it will emerge as a result of that exercise that the error made at trial would, or at least should, have been of no significance in determining the verdict that was returned by the jury. In other cases, the natural limitations of proceeding wholly or substantially on the record will, or at least should, lead the appellate court to conclude that it cannot be satisfied that a substantial miscarriage of justice has not occurred. Hence, as was observed in Weiss, conceptions of inevitability of result and loss of a fair or real chance of acquittal are likely to assist in emphasising the high standard of proof of criminal guilt and pointing to the natural limitations that attach to an appellate court proceeding wholly or substantially on the record. Baini and Castle are recent examples. In Evans v The Queen, Gummow and Hayne JJ characterised cases in the latter category as those in which the proviso cannot be engaged because the processes designed to allow the jury's fair assessment of the issues have not been followed at trial. In Evans, that was so because errors made by the trial judge undermined the accused's defence and, in an important respect, prevented the accused fully putting his defence. Other examples have consisted of a trial judge improperly foreclosing a jury's fair consideration of an available defence; a trial judge failing to alert a jury as to an available defence; a trial judge failing to sever an indictment; and a trial judge failing sufficiently to direct a jury as to the need to be satisfied beyond reasonable doubt of an element of the offence charged. Accordingly, as was emphasised in AK and Baiada, where an error has been made at trial, the process of an appellate court deciding whether it is satisfied beyond reasonable doubt on the whole of the record that the accused was proved guilty of the offence charged must begin with the identification of the nature of the error. Additionally, as was recognised in Weiss, there will also be cases where it emerges that, although the appellate court is satisfied that the accused was proved guilty beyond reasonable doubt, there has been such a departure from the requirements of a fair trial that it is not proper to dismiss the appeal. Weiss posited a denial of procedural fairness by way of example. Cesan v The Queen is a more recent example, where the departure from the requirements of a fair trial was a trial judge going to sleep on the job. In summary, 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. The appellate court's satisfaction of guilt beyond reasonable doubt is a necessary condition of the engagement of the proviso but, depending on the circumstances of a given case, it may not be open to an appellate court to be satisfied of guilt beyond reasonable doubt if the processes designed to allow the jury's fair assessment of the issues have not been followed. The exercise is not, however, constrained by a rigid taxonomy or bright line distinctions. As was recognised in Weiss, and emphasised in AK and Evans, 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 as to warrant description as a "serious breach of the presuppositions of the trial", as a "radical departure from the requirements of a fair trial", or as rendering the proceeding "fundamentally flawed" and going to "the root of the proceedings". In each case it is a question of degree. As Gummow and Hayne JJ stated in Evans: "The graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt. It is harder because the relevant premise for the debate about the proviso's application is that the processes designed to allow a fair assessment of the issues have not been followed at trial." The application of the proviso in this case Kalbasi's criticism of the Hughes two-part approach to the application of the proviso is warranted. Although reflective of the reality that there are both outcome and process aspects involved in any determination of whether an error or other miscarriage has been productive of a substantial miscarriage of justice, the two-part approach suggests that, unless the error or other miscarriage constitutes a "radical" or "fundamental" departure from the requirements of a fair trial, it is sufficient to engage the proviso that the appellate court is able to say on the basis of the record that the evidence was sufficient to prove the accused guilty beyond reasonable doubt. As has been seen, that is not the case. Further, as Kalbasi submitted, the problem with the way in which the plurality applied the Hughes two-part approach in this case is that it excluded consideration of the nature of the error from the determination of the outcome aspect of the analysis. Instead of starting with identification of the nature of the error and considering that as part of the outcome aspect of the exercise, the plurality moved straight to consideration of the evidence and concluded, on that basis alone, that they were satisfied beyond reasonable doubt of Kalbasi's guilt of the offence of which he was convicted. So to approach the task was in effect to make the same kind of error as was identified in AK and Baiada. Admittedly, when the plurality turned to consider the process aspect of the exercise, their Honours referred to the nature of the error and undertook an assessment of its significance. But because they confined the assessment to the process aspect of the exercise, they did not pause to consider whether the error was of such significance as to preclude them being satisfied of guilt beyond reasonable doubt. Instead, they reasoned that the error was not analogous to a failure to leave a defence to a jury - and hence that the trial was not fundamentally flawed in such a way as to preclude the application of the proviso - because: "There was no arguable defence on the question of intention [to sell or supply]. Once [Kalbasi] was found to have possessed the 4.981 kg of 'methylamphetamine' it was inconceivable that the jury could not have been satisfied beyond reasonable doubt that [Kalbasi] possessed the substance with an intent to sell or supply it to another." Expressing the inquiry in terms of whether the trial was "flawed in such a way as to preclude the application of the proviso" did not assist. The question was whether the trial judge's error in failing properly to direct the jury as to an element of the offence charged meant that the processes designed to allow the jury's fair assessment of the issues had not been followed. And as has been seen, depending upon circumstances, failure to follow process may preclude an appellate court being satisfied of guilt beyond reasonable doubt whether or not the failure is perceived as so extreme as to render the proceeding "fundamentally flawed". Comparison of the trial judge's error with a failure to leave a defence to the jury was also misplaced. The fundamental task of a trial judge is to ensure that the accused receives a fair trial according to law. It necessitates that the trial judge direct the jury according to law. Here, the trial judge failed to do so. The error consisted of failing to bring home to the jury the need to be satisfied beyond reasonable doubt of the essential element of intent to sell or supply to another, and, as such, it represented a serious departure from the processes designed to allow the jury's fair assessment of the issues. Consequently, to assess the error in terms simply of whether it was analogous to failing to leave a defence to the jury, and then dismiss it as insignificant on the basis that there was no arguable defence, materially understated the extent to which the processes designed to allow the jury's fair assessment of the issues had not been followed. Granted, as the State submitted, a trial judge is not required to direct a jury on an element of an offence that is not in issue, and, in one sense, the element of intent to sell or supply was not in issue in this case due to defence counsel's erroneous "concession" that the s 11 presumption applied. But here that is no answer. Counsel cannot concede a matter of law disadvantageous to the accused, especially when the "concession" is the consequence of error. Saying that a trial judge is required to direct a jury on only those elements of an offence that are in issue does not mean that defence counsel's mistaken view of the law relieves the judge of his or her responsibility to direct the jury correctly. Rather, as the plurality stated in KBT v The Queen: "There are occasions when [the proviso] is properly applied where a point was not taken at the trial because, for example, it was not in issue or there was some forensic advantage to be gained by not raising it. In cases of that kind, [the proviso] is applied because, having regard to the defence case, the accused was not deprived of a chance of acquittal that was fairly open, that being the accepted test for the application of [the proviso]. [But], if the appellant was deprived of a chance of that kind, the fact that no complaint was made at trial is irrelevant." Of course, KBT preceded Weiss and, as was stated in Weiss, there is no single universally applicable description of what constitutes a substantial miscarriage of justice. But to repeat Weiss, references to inevitability of result and to the loss of a fair or real chance of acquittal are useful in emphasising the high standard of proof of criminal guilt and as pointers to the natural limitations that attach to proceeding wholly or substantially on the record. Accordingly, as the point was later amplified in AK: "When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred." If a jury is not sufficiently directed as to the need to be satisfied beyond reasonable doubt of an essential element of the offence charged, the fact that the appellate court may consider that the evidence adduced at trial would have permitted the jury to be satisfied of guilt beyond reasonable doubt will not of itself suffice to engage the proviso. In such a case, the appellate court cannot be satisfied that the element was proved beyond reasonable doubt unless it appears that it would not have been open to the jury to conclude the contrary. And, as was explained in Baiada, that is so because if it were open to the jury to conclude that the element was not proved beyond reasonable doubt, it was open to the jury to acquit. The question here, therefore, is whether, if the jury had been properly directed as to the necessity to be satisfied beyond reasonable doubt that Kalbasi possessed the "drug" with intent to sell or supply it to another, it would have been open to the jury to acquit. As it appears, the Court of Appeal reasoned that, because the verdict signalled that the jury were satisfied beyond reasonable doubt that Kalbasi possessed 4.981 kilograms of "methylamphetamine", the jury could not rationally have resisted the conclusion that Kalbasi possessed that quantity of "drug" with intent to sell or supply it to another. So to reason, however, assumed too much about what the jury may have found to be the nature of Kalbasi's possession of the "drug". In point of fact, the jury were given broad-ranging directions as to various ways in which a person may possess a thing, and, although some of those were consistent with the possessor having the intention to sell or supply the thing to another, others were plainly inconsistent with the possessor having an intention of selling or supplying the thing to another. After explaining to the jury that the first aspect of the element of possession required the prosecution to prove that Kalbasi had knowledge that "the thing he was in possession of was a prohibited drug of some kind", the trial judge directed as follows: "The second aspect of possession is that [Kalbasi] must have had either actual physical custody of the drugs or what is referred to as control in the sense that [Kalbasi] can be said to have exercised control and dominion over the drugs to the exclusion of all other people, except those people with whom he might have been acting jointly. Members of the jury ... you do not need to own something to be in possession of it. You can possess something by physically holding it. You can also possess something without physically holding it or touching it. The concept of possession does not require that the object be in your hand or on your person, but it does require that you have either physical custody of it or that it be under your control either solely or jointly with others at the relevant time of the alleged possession. ... So a person can possess something without physically holding it or without having physical custody of it. An example of that could be when I come to work I park my car in the car bay, I take the keys with me upstairs, even though obviously I'm no longer with the vehicle. ... ... [Y]ou can also possess something temporarily and even for a limited purpose. As I've said, you can possess something without owning it. For example, 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. ... The issue is whether or not [Kalbasi] was in possession of the intended drugs by reason of his control or having done something to them while they were in [the Falstaff Crescent premises]. ... [T]he possession need not be exclusive possession in the hands of only one person. It follows that one or more people can be in joint possession of a prohibited drug and I've give[n] you an example of how my best friend is in possession of my library book in that regard. ... The third requirement for possession is that the State must prove that [Kalbasi] had the intention to exercise control or dominion over the intended drugs ... ... [A]wareness on its own of the existence of the intended drugs in [the Falstaff Crescent premises] is not sufficient ... ... [Y]ou must be satisfied that in the way I have described [Kalbasi] had some control over the drugs in [the Falstaff Crescent premises] at the relevant time even though [Lothian] may also have had control or possession of the same drugs at the same time. ... [Kalbasi] says that [Lothian] was in control of the intended drugs on his own at all times and that even though he was inside [Lothian's] place ... for about 37 minutes, he did not exercise any control over those drugs. In other words, he was not involved in doing anything with them." As was earlier noticed, Kalbasi makes no complaint about the adequacy of those directions as such. The prosecution did not invoke the extended definition of possession. The case which Kalbasi had to meet at trial was limited to possession in its natural and ordinary sense, and, if there were a case to be made on the basis of the extended definition, it was never articulated. But, as was submitted on behalf of Kalbasi, because the jury were directed as they were, it is possible that they found that Kalbasi had possession of the "drug" on the basis of being satisfied of no more than that he had "done something" to the "drug" while he was in the Falstaff Crescent premises "for a limited purpose". More specifically, given that the evidence implied that the thing Kalbasi most likely did to the "drug" while he was in the Falstaff Crescent premises was assist Lothian in cutting it, and given the trial judge's direction that Kalbasi did not need to own the "drug" in order to possess it (coupled with the trial judge's borrowed library book example of what may amount to possession), it is possible that the jury convicted Kalbasi of attempted possession on the basis of being satisfied of no more than that Kalbasi assisted Lothian to cut a "drug" that belonged to Lothian or perhaps to a third person. It may be accepted that it would have been possible for Kalbasi to possess the "drug" by doing no more than lending a hand to Lothian in its cutting. But the question for the jury was not, or at least it should not have been, simply whether Kalbasi possessed the "drug". The question should have been whether Kalbasi possessed the "drug" with intent to sell or supply it to another. And the kind of possession of which the jury would need to have been satisfied in order to conclude beyond reasonable doubt that Kalbasi attempted to possess the drug with intent to sell or supply it to another would have been different from, and substantially more than, the kind of possession that may have sufficed to satisfy them of possession simpliciter. 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. Furthermore, the problem is not just that the trial judge failed to direct the jury that they had to be satisfied beyond reasonable doubt that Kalbasi intended to sell or supply the drug to another, but also that the judge positively misdirected the jury that it was proved beyond reasonable doubt that Kalbasi did intend to sell or supply to another. As the judge put it: "I'm now going to deal with the fourth element upon the jury aid[e], that [Kalbasi] 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. 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. You must be satisfied beyond reasonable doubt about the fourth element. You do not need to concern yourself with where the drugs might have gone, how they might have got there, when they might have been moved or whatever. It's simply not relevant to your deliberations for the purpose of this trial. The fourth element is proved beyond reasonable doubt and you should give it a tick." So to misdirect the jury was adverse to Kalbasi's defence in at least two further ways. First, it positively implied that it was incumbent on Kalbasi to demonstrate that he did not have possession with intent to sell or supply - and, since he had called no evidence, thereby conveyed to the jury, in effect, that there was nothing which he could have said in opposition to the allegation that he had had possession of the "drug". Secondly, it misinformed the jury that it was proved beyond reasonable doubt that Kalbasi intended to sell or supply the drug to another, which of itself logically tended to imply that Kalbasi must have had possession of the "drug". The State contended that, even if that were so, there had been nothing to prevent defence counsel calling evidence or making submissions to the jury to the effect, for example, that if Kalbasi did have possession of any part of the "drug" it was not possession with intent to sell or supply it to another but possession only for the limited purpose of sampling it with a view to purchasing part of it for personal consumption. It followed, in the State's submission, that it should not be accepted that the misdirection deprived Kalbasi of a defence that might otherwise have been open to him. The only issue was possession, and the quantity possessed was so great that the jury could not rationally have concluded anything other than that it was possession with intent to sell or supply to another. So much was made clear, it was submitted, by the obiter dictum observation in Krakouer that, if there had been only one offence of attempt to possess in issue in that case, the conviction might have been upheld despite the mistake as to the application of the s 11 presumption. Those contentions should also be rejected. Kalbasi was entitled to put the prosecution to proof not only as to whether he possessed the "drug" but also as to whether his possession of it was of a kind that implied beyond reasonable doubt that he possessed it with intent to sell or supply it to another. As has been explained, the fact that defence counsel, the prosecutor and the trial judge were mistaken as to the application of s 11 is beside the point. It was the trial judge's responsibility to ensure that Kalbasi received a fair trial according to law, and, accordingly, it was incumbent on the trial judge to direct the jury according to law. For the trial judge to direct the jury in effect that it was up to Kalbasi to rebut a presumption which "proved [intent to sell or supply the drug to another] beyond reasonable doubt" was contrary to law and constituted a serious departure from the requirements of a fair trial. It both reversed the burden of proof as to the essential element of intent to sell or supply to another and aided in undermining Kalbasi's argument that it was not proved beyond reasonable doubt that he had possession. That is not to say that, if the jury had been correctly directed, it would not have been open to them to be satisfied of Kalbasi's guilt. The large quantity of the drug in question and the other circumstances of the alleged offending represented a powerful circumstantial case of guilt. But, as was emphasised in AK and reiterated in Baiada, demonstration that a chain of reasoning can be articulated that would require the verdict reached at trial does not always permit, let alone require, the conclusion that no substantial miscarriage of justice has occurred. It is not open to an appellate court to be satisfied that an accused was proved guilty beyond reasonable doubt if it was open to the jury to reach the contrary conclusion. And here, for the reasons already stated, if the jury had been properly directed, it would have been open to them to reach a contrary conclusion. Conclusion and orders In the result, the appeal should be allowed. The order of the Court of Appeal dismissing the appeal should be set aside. In its place, it should be ordered that the appeal to the Court of Appeal be allowed, the conviction the subject of the appeal be quashed, the sentence passed below be set aside, and a new trial be had.