R v Kola No. DCCRM-02-323 - [2004] SADC 77

R v Kola
[2004] SADC 77
Judge Muecke
Criminal

By Information filed 18` April 2002 Albina Kola (“Mrs Kola”) and Lec Kola (“the accused”) were jointly charged with the following offences:
First Count
Statement of Offence
Taking Part in the Production of Cannabis. (Section 32(1)(b) of the Controlled Substances Act, 1984)
Particulars of Offence
Albina Kola, Lec Kola and Arber Lika between the 1st day of November, 2000 and the 21st day of May, 2001 (later amended to 12th May, 2001) at Grange, knowingly took part in the production of cannabis, a prohibited substance.
It is further alleged that the said offence involved in excess of 19 cannabis plants.
Second Count
Statement of Offence
Taking Part in the Production of Cannabis. (Ibid).
Particulars of Offence
Albina Kola and Lec Kola between the 1st day of March, 2001 and the 22nd day of May, 2001 at Fulham Gardens, knowingly took part in the production of cannabis, a prohibited substance.
Third Count
Statement of Offence
Possessing Cannabis for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).
Particulars of Offence
Albina Kola and Lec Kola on the 21st day of May, 2001 at Fulham Gardens, knowingly had cannabis, a prohibited substance, in his (sic) possession for the purpose of selling it to another person.
It is further alleged that the said offence involved in excess of 10kg of cannabis.
The allegations in the first count involved twenty cannabis plants police found growing hydroponically in two bedrooms in a house at Grange Road, Grange when police searched that house on 11 May 2001. The house was a rental property and it was alleged that the owner of the house identified Mrs Kola and the accused as being persons associated with the rental of the house during the time of the alleged offending. Further, a neighbour alleged seeing an elderly couple in a car registered to the accused coming almost daily to the house until about the end of March 2001. It was also alleged that the neighbour said that photographs of Mrs Kola and the accused were similar to or closest to the elderly persons she had seen at the house.
The second and third counts involved three mature cannabis plants police found growing hydroponically in a bedroom at a house at Fulham Gardens when they went to that house on 21 May 2001. It was alleged that police located cannabis weighing approximately 11.5 kg at the house. It was further alleged that Mrs Kola and the accused were living at the Fulham Gardens house when police attended there on 21 May 2001.
On 13 March 2002 Mrs Kola, the accused and Arber Lika (“Mr Lika”) were all committed for trial in this court. On 22 April 2002 they were arraigned and all pleaded not guilty. The trial was ultimately set to commence on Monday 17 March 2003.
Before the trial commenced on 17 March 2003 counsel for the accused provided the Judge to whom the trial was allocated two reports of a…

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.

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Details

Case: [2004] SADC 77
Decision Date: 21 May 2004

CaseChat Overview and Summary

The accused, Lec Kola, was jointly charged with Albina Kola with producing and possessing cannabis for sale. Before the trial, the court had ordered investigations into the accused's mental fitness to stand trial, which were ultimately conducted in March 2004. The court heard evidence from two experts, both clinical neuropsychologists, who provided conflicting opinions on whether the accused was mentally fit to stand trial. Ultimately the court decided that it had not been established that the accused was mentally unfit to stand trial. The court based its decision on the opinion of one of the experts, Mark Reid, who concluded that the accused was mentally fit to stand trial. The court found the accused was able to understand the charges, respond rationally to them, and exercise procedural rights.

Orders