Lukaj v The King

Case [2025] SASCA 110

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
Case
[2025] SASCA 110
Decision Date

CaseChat Overview and Summary

The appeal concerned the admissibility of evidence in criminal proceedings against the appellant, Mr Lukaj, who was charged with multiple cultivation and trafficking offences under the Controlled Substances Act 1984 (SA). The central issue at trial was the identification of the appellant as the person responsible for renting and financing nine properties used as cannabis "grow houses." The prosecution alleged that the appellant used false identities to secure these leases, while his brother played a more hands-on role. The appeal was heard by S Doyle and Stanley JJ, and Mullins AJ.

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.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, we grant permission to appeal, but dismiss the appeal. Background In 2016, searches were conducted of seven properties across the northern and north-eastern suburbs of Adelaide. Police found a large number of cannabis plants, and also found harvested cannabis at two of the properties. The appellant and his brother were charged with multiple cultivation and trafficking offences under the Controlled Substances Act 1984 (SA) (‘CSA’), as detailed below. There was no dispute at trial as to the nature or quantity of the cannabis plants and material found at each of the properties (referred to as ‘grow houses’). There was also no dispute that the cannabis had been cultivated for sale. The only issue in relation to each of the nine counts alleged against the appellant was identification; that is, whether the appellant was responsible for the cultivating and trafficking. On the prosecution case, the appellant was the person involved in renting the premises and financing the cultivation operations. His brother was said to have had a more ‘hands on’ role. The following table sets out the detail relating to each of the seven grow houses: Each property was advertised for rent using the Gumtree website or similar, and was privately managed by the landlord. Some landlords gave evidence that they conducted licence or reference checks prior to entering into the lease agreements. However, it was the prosecution case that, for the most part, these landlords were unsuspecting. In each case, it was agreed that the rent was to be paid directly by the tenant to the landlord by cash deposit to an identified bank account. There were never any issues with the payment of rent. On the prosecution case, the appellant entered into an agreement with each landlord using a false identity, involving the provision of not only false names, but also false phone numbers, references and identification documents. Each landlord gave evidence that they entered into an agreement to lease the property with a male, who gave the names in the table above. On each occasion, the male was accompanied by a female, whose name was variously given as Katarzyna (grow house 2), Kasia (short for Katarzyna) (grow house 4), Katrina (grow house 5) and Maria (grow houses 6 and 7). There was a common theme amongst the landlords’ descriptions of both the male and female. The male gave an ‘Italian sounding’ name and spoke in ‘broken’ English, and the female spoke in English but with a strong accent, or a strong European accent. Most of the landlords described the man’s physical appearance in relatively consistent terms. Some described him as having a European appearance, with olive skin, less than six foot in height, and with a solid or medium build. Those who described his hair said he had brown hair, with some adding that his hair was thinning or that he was slightly balding. Several of the landlords described him as neatly dressed. Three of the landlords gave evidence that the man told them he was employed as a painter. It was an agreed fact that the appellant’s occupation between 2014 and 2016 was as a painter.

Evidence

Evidence Before The Court

The appellant accepted that, generally speaking, the judge’s directions in relation to the discreditable conduct evidence relating to other grow houses were thorough and appropriate. However, as mentioned, he challenged two aspects of those directions.The evidence of deception The first aspect of the appellant’s challenge involved a complaint that the judge did not ever separately identify the evidence of the deception involved in renting the seven different properties as evidence of discreditable conduct, and thus failed to identify and explain the permissible and impermissible uses of this evidence for the purposes of s 34R of the Evidence Act. In support of the need for the judge to separately address this evidence, the appellant relied upon the prosecutor’s reference in submissions at trial to the appropriateness of the judge doing so, and the judge’s apparent acceptance of this submission. It may be accepted that the evidence suggesting the use of false names, and other false forms of identification, was evidence of deceptive conduct, and hence evidence of discreditable conduct for the purposes of s 34R. It may also be accepted that the judge did not give any separate, or stand alone, directions as to the permissible and impermissible uses of this evidence. The issue is whether, in the circumstances of this case, separate directions were required, or whether the more general directions about the use of the evidence relating to the rental of the other grow houses, as summarised above, were adequate to achieve compliance with the judge’s obligations under s 34R. As the appellant argued, a propensity to engage in deceptive conduct is conceptually distinct from a propensity to engage in the criminal conduct inherent in renting premises for the purposes of cultivating or trafficking cannabis. In other words, a propensity to engage in deceptive or dishonest conduct is conceptually distinct from a propensity to engage in cannabis or drug offending. In some circumstances, this conceptual distinction will be important. However, it is well recognised that what is required to comply with s 34R of the Evidence Act will depend upon the circumstances of the particular case.[9] Put another way, the nature of the permissible and impermissible uses of the evidence of discreditable conduct that must be identified and explained, and indeed the specificity with which they must be identified and explained, will depend to some extent upon the charged offences, the matters in issue, and the way in which the parties conduct the case.[9] Perera-Cathcart v The Queen (2017) 260 CLR 595 at [52]-[53], [57]-[58] (Kiefel, Bell and Keane JJ); R v Tran [2017] SASCFC 99 at [163] (Doyle J), applied in JGS v The Queen [2020] SASCFC 48 at [97] (Lovell J, Bampton and Peek JJ agreeing) and Adamson v The King [2024] SASCA 91 at [53]-[57] (Lovell, Doyle and Bleby JJA). In the present case, the deception involved in securing the leases for the properties to be used as grow houses was closely related to, if not part and parcel of, the discreditable conduct involved in obtaining the rental premises for use as grow houses. In these circumstances, it was appropriate to address all of this conduct as, in effect, a single head of discreditable conduct.

Decision

Reasons for decision

No miscarriage of justice has been established, and Ground 2 has not been made out. Conclusion For the reasons set out, we grant permission to appeal but dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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