R v Kola

The case of R v Kola involved the appellant, who was convicted of possessing cannabis for sale, in contravention of s 32(1)(e) of the Controlled Substances Act 1984 (SA). The trial judge imposed a sentence of imprisonment for three years, with a non-parole period of two years, which was subsequently suspended upon the appellant entering into a bond. The primary legal issues in this appeal centered around the legality of the breath testing station (BTS) where the appellant was initially stopped, and whether the evidence obtained from the subsequent search and arrest should have been excluded due to the alleged unlawful establishment of the BTS.

The court examined whether the BTS was lawfully established, which determined the legality of the subsequent search and arrest. The court held that the BTS was lawfully established, thus there was no basis for excluding the evidence obtained from the searches. The court considered the discretion of the trial judge to exclude evidence obtained by unlawful means, but found that there was no evidence of conscious wrongdoing or recklessness on the part of the police officers involved. The court also evaluated whether the judge adequately considered the exercise of discretion under Bunning v Cross (1978) 141 CLR 54, concluding that the judge's decision not to exclude the evidence was appropriate.

Ultimately, the appeal was dismissed by the court, with both the Chief Justice and Lander J concurring that the appeal should be dismissed. The court determined that even if the BTS was unlawfully established, it would not have led to the exclusion of the evidence, given the lack of evidence of intentional misconduct and the proper interpretation of the relevant legislation.