Director of Public Prosecutions (Cth) v Kola

The High Court of Australia considered an appeal by the Director of Public Prosecutions (Cth) against the Director of Public Prosecutions (Cth) v Kola. The dispute concerned the conviction of the respondent for conspiracy to import a commercial quantity of a border-controlled drug, contrary to sections 11.5(1) and 307.1(1) of the *Criminal Code* (Cth). The Court of Appeal of the Supreme Court of South Australia had found that the trial judge failed to properly direct the jury on the element of the offence regarding the quantity of the drug and that the directions wrongly permitted the jury to consider the conduct of co-conspirators outside the respondent's presence when determining the scope of the conspiratorial agreement.

The legal issues before the High Court were whether the trial judge's directions to the jury regarding the quantity element of the conspiracy offence were adequate, and whether those directions impermissibly allowed the jury to consider the actions of co-conspirators outside the respondent's presence in defining the scope of the agreement. This involved considering the operation of section 11.5(7A) of the *Criminal Code*, which applies special liability provisions to conspiracy offences, and section 307.1(3), which imposes absolute liability on the physical element of importing a border-controlled drug.

The High Court reasoned that the Court of Appeal's criticisms of the trial judge's summing up were not justified. The Court found that the evidential material concerning the quantity of the drug was confined to the conduct the respondent agreed to engage in and his intentions. Furthermore, the Court determined that there were no issues in this case regarding the admissibility or use of acts and declarations of co-conspirators undertaken in the respondent's absence, as the evidence suggested that the co-conspirators who travelled to Panama were acting in accordance with the agreement made with the respondent. Consequently, the general warning given by the trial judge about the co-conspirators rule was deemed sufficient.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal of the Supreme Court of South Australia and ordering that the appeal to that Court be dismissed.