Kola v The King - [2023] SASCA 50

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
KOLA v THE KING
[2023] SASCA 50
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Nicholson and the Honourable Justice Stein)
19 May 2023
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - SCOPE OF CONSPIRACY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED
Appeal against conviction.
The appellant was charged on Information in the District Court with the offence of 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 Act 1995 (Cth). The appellant was convicted of the offence on a trial by jury.
The appellant relies on five grounds of appeal:
1.The trial Judge erred in failing to direct the jury that it was an element of the offence of conspiracy that the appellant had agreed with others to import a shipment of cocaine which, if the agreement were executed, would have been a commercial quantity.
2.The appellant’s trial miscarried as a result of the wrongful admission of certain intercepted telephone calls by reason of s 34P of the Evidence Act 1929 (SA).

3. The trial Judge’s direction on the use of the intercepted telephone calls was inadequate.
4.The trial miscarried as a result of the wrongful admission of evidence of the prosecution’s expert witness.
5.The trial miscarried as a result of the wrongful admission of evidence of a witness that he had assisted the appellant’s co-conspirator in the cultivation of cannabis.

Held (by Kourakis CJ, Nicholson and Stein AJJA agreeing):
1. The appeal is allowed on Ground 1.
2.It is an element of the offence of conspiracy to import a commercial quantity of cocaine that the conspirators agreed to engage in conduct which, if executed, would have resulted in the importation of a commercial quantity of cocaine, whether the conspirators knew, or intended, the execution of their agreement would result in product of that weight being imported. The trial Judge failed to so direct the jury.

3.      The remaining grounds of appeal are dismissed.
4.      Conviction set aside.
5.      The matter is remitted for re-trial.
Criminal Code Act 1995 (Cth) ss 11.5, 307.1; Evidence Act 1929 (SA) s 34(P); Criminal Procedure Act 1921 (SA) s 160(2), referred to.
R v LK (2010) 241 CLR 177; Standen v The Queen (2015) 298 FLR 35; Standen v Director of Public Prosecutions (Cth) (2011) 254 FLR 467; Le v The Queen (2016) 308 FLR 486; Spies v The Queen (2000) 201 CLR 603, considered.

KOLA v THE KING
[2023] SASCA 50
Court of Appeal - Criminal: Kourakis CJ, Nicholson and Stein AJJA

KOURAKIS CJ: The appellant, Alfred Kola, was convicted in the District Court on a charge of conspiracy to import a commercial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kola v The King

Details

AGLC: Kola v The King [2023] SASCA 50
Case: [2023] SASCA 50
Decision Date: 19 May 2023

CaseChat Overview and Summary

This case concerned an appeal by Mr Kola against his conviction for conspiracy to import a commercial quantity of cocaine. The prosecution's case was that Mr Kola, along with Mr Yavuz and Mr Londono-Gomez, conspired to import cocaine from Central America to Australia. Key to the prosecution's evidence was the testimony of James, who claimed he was recruited by Mr Kola and Mr Yavuz to accompany the cocaine shipment from Panama to Australia for a payment of $250,000. The evidence also included intercepted communications where coded language, such as "lady" for cocaine and "door" for an importation opportunity, was allegedly used.

The legal issues before the Full Court of the Supreme Court of South Australia were whether the trial judge had erred in admitting certain evidence and whether there had been a miscarriage of justice. Specifically, the court considered the relevance and potential prejudice of evidence concerning Mr Yavuz's prior cultivation of cannabis and his association with James. The court also had to determine if the admission of this evidence, despite its potential to associate Mr Kola with criminal activity, had unfairly impacted the jury's verdict.

The Full Court reasoned that the evidence of Mr Yavuz's prior cannabis cultivation and James's assistance in that activity was relevant to explaining why Mr Yavuz might have trusted James to accompany the cocaine shipment. The court found that any prejudice to Mr Kola arising from this association was minimal when considered against the totality of the evidence presented. Furthermore, the trial judge had provided a warning to the jury regarding the impermissible use of such evidence. Consequently, the court concluded that no miscarriage of justice had occurred due to the admission of this evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence of James’ participation in the cultivation of cannabis by Mr Yavuz was relevant to explain why Mr Yavuz had nominated James as the person whom could be trusted to accompany the cocaine from Central America. Such prejudice as there might have been to Mr Kola by reason of his association with Mr Yavuz was minimal having regard to all of the other evidence. The Judge warned the jury against any impermissible use. No miscarriage of justice has been occasioned by the admission of that evidence.The evidence Mr Kola’s co-accused, Mr Londono-Gomez, is a Columbian national who in early 2014 was residing in Australia. He was referred to by his co-conspirators as ‘Mono’. Mr Yavuz was a meat retailer and wholesaler who had, some time before the alleged conspiracy, cultivated cannabis plants. James had assisted Mr Yavuz in that cultivation. On 21 March 2014 Mr Londono-Gomez told Mr Kola that he was going to return to Columbia because his father was ill. Mr Kola arranged to speak to Mr Londono-Gomez before he left and, as part of that arrangement, phoned Mr Yavuz to inform him that Mr Londono-Gomez wanted some ‘paper’ before he left. The prosecution adduced evidence from an Australian Federal Police Officer, Mr Feeney, that the word ‘paper’ was code for money. In early April 2014 Mr Londono-Gomez travelled to Adelaide and met Mr Kola on several occasions. On 3 April 2014 Mr Kola, Mr Yavuz, Mr Londono‑Gomez and James had lunch at the Mawson Lakes Hotel. On 10 April 2014 Mr Kola spoke to a male referred to as Julio who was in Columbia. Julio asked ‘so I’m going to see you, uh in couple weeks ok?’ Mr Kola replied ‘yes … I’ll call you back and let you know because I haven’t done the ticket yet.’ Julio told Mr Kola that he wanted to meet him. On 2 May 2014 Mr Londono‑Gomez travelled from Australia to Columbia. Between 13 and 14 May 2014, Mr Kola spoke to Julio and Mr Londono‑Gomez about arranging for someone to travel to Panama City to go with the ‘lady’. In another conversation Mr Londono-Gomez said of someone that ‘he’s got the door open’ and later repeated that ‘the door [it’s] opened for us.’ It was the prosecution’s evidence that the word ‘lady’ was a code commonly used for cocaine in conversation and that ‘door’ was code for an importation opportunity. James testified that Mr Kola and Mr Yavuz agreed to pay him $250,000 to travel to Central America and return on the boat with the cocaine. On 16 May 2014 James accompanied Mr Yavuz and Mr Kola to the Mawson Lakes office of Flight Centre and booked airfares for James to travel to Panama City. James left for Panama City on 19 May 2014. James gave evidence that he met Mr Londono‑Gomez in Panama and that Mr Londono-Gomez introduced him to Marco who would captain the boat to Australia. James, Mr Londono-Gomez and Marco spent several days together. James testified that he remained in Panama waiting for a shipment of cocaine to be loaded onto a boat on which James would travel with others to Australia. James remained in Panama for several weeks whilst the boat was repaired. Eventually the boat captained by Marco sailed through the Panama Canal with James on board.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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