Director of Public Prosecutions (Cth) v. Kola

Lower Court Judgment

19/05/2023 Supreme Court of South Australia (Kourakis CJ, Nicholson J, Stein J)

[2023] SASCA 50

Catchwords

Criminal law – Drug offences – Scope of conspiracy – Misdirection and non-direction – Where respondent charged with conspiring to import commercial quantity of border controlled drug contrary to ss 1.5(1) and 307.1(1) of Criminal Code (Cth) – Where Crown case respondent agreed with others to conduct being engaged in, which if successful, would result in commercial quantity of cocaine being imported from Panama to Australia – Where no direct evidence of quantity of cocaine agreed to import – Where Crown relied on inferences to support case amount of cocaine to be imported 2kg or more –  Where trial judge directed jury elements to be proven beyond reasonable doubt included substance imported pursuant to agreement commercial quantity – Where approach to directing juries about elements of conspiracy offence differs in Victoria, New South Wales and present South Australian case – Whether Court of Appeal erred concluding trial judge failed to direct element of offence of conspiracy to import commercial quantity of  border controlled drug was accused had agreed with others to engage in conduct which, if executed, would have resulted in importation of commercial quantity of cocaine – Whether Court concluding trial judge’s directions permitted respondent to be convicted if jury satisfied acts engaged in by conspirators would have resulted in importation of commercial quantity of cocaine, even if not in agreement entered – Whether Court erred holding jury should have been directed whether conspiratorial agreement concerned commercial quantity of cocaine to be determined having regard only to circumstances known, or believed, by conspirators to exist such that evidence of what in fact occurred irrelevant to existence of alleged agreement.