R v Nikolic - [2019] SASCFC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v NIKOLIC
[2019] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Lovell)
5 April 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The appellant was convicted by a jury in the District Court of one count of Trafficking in a Commercial Quantity of a Controlled Drug, contrary to section 32(2) of the Controlled Substances Act 1984 (SA). The appellant gave evidence at trial whereby he admitted to taking hold of the drugs but indicated that he did so in order to discard of them.
Whether the primary Judge erred in her directions on possession - whether the primary Judge erred in failing to leave simple possession as an alternative verdict - whether the trial Judge erred in directing the jury on a factual basis that was not alleged by the prosecution - whether the primary Judge erred in failing to give the jury a "unanimity" direction.
Held, per Lovell J (Kourakis CJ and Stanley J agreeing), dismissing the appeal:
1. The primary Judge's directions as to possession were factually and legally correct.
2. The decision of the primary Judge not to leave simple possession as an alternative verdict was neither an error of law nor productive of a miscarriage of justice.
3. The alternative pathway to guilt arose from the appellant's own evidence. The primary Judge's directions on the issue did not result in any unfairness to the appellant.
4. An unanimity direction on possession was not necessary in the circumstances of the case.
Controlled Substances Act 1984 (SA) ss 4, 32, referred to.
R v Boyce (1976) 15 SASR 40; R v Baftiroski [2018] SASCFC 83; Twining v Samuels (1971) 2 SASR 50; Martin v Osborne (1936) 55 CLR 367; R v Franco (2003) 227 LSJS 368; R v Solomon [1980] 1 NSWLR 321; James v R (2014) 253 CLR 475; Lane v R (2018) 357 ALR 1; R v McCarthy (2015) 124 SASR 190 , considered.

R v NIKOLIC
[2019] SASCFC 32
Court of Criminal Appeal: Kourakis CJ, Stanley and Lovell JJ

KOURAKIS CJ: I dismiss the appeal. I agree with the reasons of Lovell J.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Lovell J.
LOVELL J: Zoran Nikolic (‘the appellant’) was tried before a jury in the District Court of one count of Trafficking in a Commercial Quantity of a Controlled Drug contrary to section 32(2) of the Controlled Substances Act 1984 (SA) (‘CSA’). The appellant was convicted and sentenced to imprisonment for six years with a non-parole period of three years and four months. He now appeals his conviction on a number of grounds…

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 Nikolic

Details

AGLC: R v Nikolic [2019] SASCFC 32
Case: [2019] SASCFC 32
Decision Date: 5 April 2019

CaseChat Overview and Summary

The appeal concerned the conviction of the appellant, Nikolic, for trafficking in a commercial quantity of a controlled drug. The appeal was heard by the Supreme Court of South Australia, constituted by Kourakis CJ, Stanley and Lovell JJ.

The central legal issues before the Court were whether the trial judge had misdirected the jury on the elements of trafficking and whether the judge had failed to adequately direct the jury on the defence of entrapment. Specifically, the Court had to consider whether the jury had been properly instructed on the requirement for the prosecution to prove an intention to supply the drug to more than one person, or to supply it on more than one occasion, as part of the definition of trafficking.

The Court held that the trial judge’s directions on trafficking were inadequate. It was established that trafficking, as defined in the relevant legislation, required proof of an intention to supply the drug to more than one person or on more than one occasion. The judge’s summation had not made this requirement sufficiently clear to the jury, thereby creating a risk of a miscarriage of justice. Furthermore, the Court found that while the defence of entrapment had been raised, the trial judge had not provided adequate directions to the jury on how to consider this defence in the context of the evidence presented.

Consequently, the Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders