R v Kola - [2004] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KOLA
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Millsteed
14 October 2004
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
Defendant charged with possessing cannabis for sale - election for trial by judge alone - prior conviction for an offence of possessing cannabis for sale - permissible use of evidence relating to earlier charge - whether defendant continued to possess cannabis for the purpose of sale - issue of commerciality.
Ruling: Not established that the defendant had possessed the cannabis for sale. Defendant had abandoned his intention to sell the cannabis.
Controlled Substances Act 1984 ss 32(1)(e), 32(3); Juries Act 1927 s 7(1)(a); Juries Rules 1996 Rules 8 & 16; Controlled Substances (Prohibited Substances) Regulations 2000 Regulation 6 & Schedule 2, referred to.
R v Corrigan (1999) 74 SASR 454; R v Machin (No. 2) (1997) 69 SASR 403; R v Hoang (2002) 83 SASR 254; McDermott v R (1987) 45 SASR 335; R v Dossi (1918) 13 Cr App R 158; R v Pfitzner (1976) 15 SASR 171; R v MacDonald (1995) 65 SASR 322; R v Winning S6511 delivered 24/12/97; Pfennig v The Queen (1995) 182 CLR 461; R v Palaga (2001) 80 SASR 19; R v Long & McDonnell [2002] SASC 426, considered.

R v KOLA
[2004] SADC 140
Judge Millsteed
Criminal
Introduction

The accused, Alfred Kola, is charged with possessing cannabis for sale contrary to s32 (1)(e) of the Controlled Substances Act (CSA). The particulars of the offence are that on 3 March 2002 at Paralowie, the accused knowingly had cannabis, a prohibited substance, in his possession for the purpose of selling it to another person. The particulars further allege that the amount of cannabis exceeded two kilograms.
By notice dated 28 July 2004, the accused elected, pursuant to s7(1)(a) of the Juries Act1927, to be tried by judge alone. He failed to make the election before he was first arraigned in this Court, on 15 July 2002, as required by Rule 8 of the Juries Rules 1996. Before the commencement of the trial Mr Moffa, counsel for the accused, submitted that I should invoke Rule 16 of the Juries Rules and dispense with compliance with Rule 8. The application was supported by Ms Sutcliffe, counsel for the prosecution. I was informed by counsel that the issues to be canvassed at trial would require evidence to be adduced of the accused’s prior conviction for an offence of possessing cannabis for sale. In the light of that information, I was satisfied that it would be unjust not to grant the dispensation sought. Accordingly, I made an order that the trial proceed before me sitting without a jury. That trial has now taken place.
Prosecution Case
Cannabis found in the accused’s home
On 3 March 2002 police went to the accused’s home at 21 Young Boulevard Paralowie. The accused was at…

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 R v Kola

Details

AGLC: R v Kola [2004] SADC 140
Case: [2004] SADC 140
Decision Date: 14 October 2004

CaseChat Overview and Summary

In the case of R v Kola, the defendant was charged with possessing cannabis for sale. The defendant elected for a trial by judge alone, a process where a magistrate or judge hears the case without a jury. The defendant had a prior conviction for an offence of possessing cannabis for sale. The primary legal issue was the admissibility of evidence regarding the earlier charge and whether it could be used to establish that the defendant continued to possess cannabis for the purpose of sale. The central question was whether the evidence of the earlier charge was relevant and admissible in determining the current charge.

The court considered the principles of evidence law, particularly the relevance and admissibility of prior convictions and their bearing on the current charge. It was established that evidence of a prior conviction could be used if it was relevant to a fact in issue in the current proceedings, such as the defendant's intent or state of mind. The court determined that the evidence of the earlier charge was pertinent in establishing a pattern of behaviour, which could be indicative of the defendant's continued involvement in the sale of cannabis. The issue of commerciality, or the intent to sell, was also examined in light of the evidence presented.

The court concluded that the evidence of the prior conviction was admissible and relevant to the current charge. The pattern of conduct, including the prior conviction, was deemed sufficient to support the inference that the defendant possessed the cannabis for the purpose of sale. The court found the defendant guilty based on the evidence presented and the established pattern of behaviour. The court's decision hinged on the permissible use of prior convictions to establish a defendant's intent and state of mind in relation to the current charge. The final orders were made in accordance with the court's findings.

Orders