SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LUKAJ v THE KING
[2025] SASCA 110
Judgment of the Court of Appeal
(The Honourable Justice S Doyle, the Honourable Justice Stanley and the Honourable Auxiliary Justice Mullins)
2 October 2025
EVIDENCE - ADMISSIBILITY - TENDENCY, CO-INCIDENCE AND PROPENSITY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - ADMISSIBILITY
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES INVOLVING MISCARRIAGE
Appeal against conviction.
The appellant was convicted of nine counts of trafficking and cultivation in relation to 523 cannabis plants and 37 kilograms of harvested cannabis located by police across seven rental properties.
The prosecution case was that the appellant was involved in sourcing the rental properties in which the cannabis was located and in financing the cultivation operations. It was also alleged that the appellant was involved in the sale of the harvested cannabis by storing, preparing and drying it, or at least by providing the properties at which it was stored and prepared.
The appellant appeals on two grounds: (i) that the judge’s directions in relation to the permissible and impermissible uses of the cross-admissible evidence of discreditable conduct were inadequate, and (ii) that a miscarriage of justice resulted from an in-court identification of the appellant by a witness.
Held, per the Court, granting permission to appeal, but dismissing the appeal:
1.The judge’s directions on the discreditable conduct evidence were adequate to ensure the jury understood the permissible and impermissible uses that could be made of that evidence and hence for compliance with s 34R of the Evidence Act 1929 (SA).
2.The risk of prejudice associated with the in-court identification of the appellant was adequately addressed by the judge’s direction to disregard this evidence.
Controlled Substances Act 1984 (SA) ss 32(1), 32(2), 33B(1), 33B(2), 33B(3); Evidence Act 1929 (SA) s 34AB(3), 34R, referred to.
Adamson v The King [2024] SASCA 91; Alexander v The Queen (1981) 145 CLR 395; Al-Hashimi v The Queen (2004) 181 FLR 383; Brawn v The King [2025] HCA 20; Davies v The King (1937) 57 CLR 170 ; Domican v The Queen (1992) 173 CLR 555; Festa v The Queen (2001) 208 CLR 593; Gilbert v The Queen (2000) 201 CLR 414; Grbic v Pitkethly (1992) 38 FCR 95; JGS v The Queen [2020] SASCFC 48; Jokic v Hayes (1990) 53 SASR 530; Lukaj v The King [2022] SASCA 135; MDP v The King [2025] HCA 24; Perera-Cathcart v The Queen (2017) 260 CLR 595; Preston v The Queen (2013) 116 SASR 522; R v Andrews (No 4) [2005] SASC 300; R v Britten (1988) 51 SASR 567; R v Clark (1996) 91 A Crim R 46; R v Dickman (2017) 261 CLR 601; R v Gassy [2004] SASC 338; R v Gorham (1997) 68 SASR 505; R v Tran [2017] SASCFC 99
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- Lukaj v The King [2025] SASCA 110
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- [2025] SASCA 110
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CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had adequately directed the jury regarding the admissibility of evidence of discreditable conduct, specifically the deceptive practices used by the appellant in renting the properties. The appellant argued that the judge failed to separately identify the evidence of deception as discreditable conduct and to explain its permissible and impermissible uses under section 34R of the Evidence Act. The court was required to determine if separate directions were necessary or if the general directions provided were sufficient.
The court reasoned that while the evidence of deception in securing the leases was indeed evidence of discreditable conduct, and the judge did not give separate directions on its use, the general directions provided were adequate in the circumstances. The court noted that the deception involved in obtaining the rental premises was closely related to, and in effect part of, the discreditable conduct of using the properties as grow houses. Therefore, it was appropriate to treat all this conduct as a single category of discreditable conduct. The court concluded that no miscarriage of justice had occurred.
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Background to the litigation
Evidence
Evidence Before The Court
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Ratio Decidendi
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