Zenuni v The King - [2022] SASCA 106

Supreme Court of South Australia
(Court of Appeal: Criminal)
ZENUNI v THE KING
[2022] SASCA 106
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
21 October 2022
CRIMINAL LAW - PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - SEARCH AND SEIZURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - KNOWLEDGE AND INTENT - SOUTH AUSTRALIA
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE - MISDIRECTION OR NON-DIRECTION - NON-DIRECTION
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION - OF EQUIPMENT AND IMPLEMENTS
Following a trial by jury, the appellant was convicted of the offences of trafficking in a large commercial quantity of a controlled drug, namely cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’) (Count 1), and possessing prescribed equipment, contrary to s 33LA of the CSA (Count 2). Both charges arose out of a police search of a residential premises at Brahma Lodge (the ‘Premises’) on 25 October 2016.
Prior to trial, the appellant applied for the exclusion of the evidence obtained by police during the search on the basis that the investigating officer did not have reasonable cause to suspect the commission of an offence, such as to authorise the search pursuant to s 67(4)(a) of the Summary Offences Act 1953 (SA). The voir dire Judge declined to exclude the evidence. The trial then proceeded before a different Judge.
The appellant now appeals against his convictions on the following grounds:
•The voir dire Judge erred in finding that the search was lawful and in declining to exclude the evidence. (Grounds 1 and 2);
•The trial Judge’s directions were inadequate and resulted in a miscarriage of justice (Grounds 3 and 4);
•The trial Judge erred at law, or caused a miscarriage of justice, by leaving open to the jury the path of convicting the appellant of each charge according to the principles of joint criminal enterprise (Ground 5); and
•The trial Judge erred in his directions to the jury concerning the application of the principles of joint criminal enterprise to the charged offences (Ground 6).

Held, per the Court, granting leave to appeal on Grounds 2 to 6, allowing the appeal against conviction on Grounds 3 and 4, setting aside the appellant’s convictions, and remitting the matter for retrial:
1.As to Grounds 1 and 2, the voir dire Judge did not err in finding that the search was lawful and in declining to exclude the evidence.
2.As to Grounds 3 and 4, the directions given by the trial Judge on possession and joint possession were inadequate and gave rise to a miscarriage of justice.
3.As to Grounds 5 and 6, while the trial Judge’s directions on joint criminal enterprise were unnecessary and were apt to lead to confusion, they did not ultimately result in a miscarriage of justice.

4. This is not an appropriate case in which to apply the proviso.
5.The appellant’s convictions on Counts 1 and 2 are set aside. The matter is remitted to the District Court for retrial.

Controlled Substances Act 1984 (SA) ss 4, 32, 33LA; Criminal Procedure Act 1921 (SA) s 158; Electricity Act 1996 (SA) s 85; Summary Offences Act 1953 (SA) s 67(4)(a), referred to.
Baini v The Queen (2012) 246 CLR 469; Lane v The Queen (2018) 265 CLR 196; McHugh v The Queen [2022] SASCA 5; Queensland Bacon Proprietary Limited v Rees (1996) 115 CLR 266; R v Baftiroski [2018] SASFC 83; R v Colenso [2016] SASCFC 128; R v GNN (2000) 78 SASR 293; R v Nguyen (2010) 108 SASR 66; (2010) 204 A Crim R 64; [2010] SASCFC 23; R v Nguyen (2013) 1174 SASR 432; R v Rogers (2011) 109 SASR 307; R v Wood (2017) 131 SASR 291; R v Zenuni [2020] SADC 118; Weiss v The Queen (2005) 224 CLR 300, considered.

ZENUNI v THE KING
[2022] SASCA 106
Court of Appeal – Criminal: Livesey P, Bleby and David JJA

THE COURT: Following a trial by jury, the appellant, Mr Hekuran Zenuni, was convicted of the offences of trafficking in a large commercial quantity of a controlled drug, namely cannabis, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’) (Count 1), and possessing prescribed equipment, contrary to s 33LA of the CSA (Count 2). Both charges arose out of a police search of a residential premises at Brahma Lodge (the ‘Premises’) on 25 October 2016.
Prior to trial, the appellant applied for the exclusion of the evidence obtained by police during the search. The appellant contends that the search was unlawful on the basis that the investigating officer, Detective Brevet Sergeant William McCaffrey (‘DBS McCaffrey’), did not have reasonable cause to suspect the commission of an offence at the Premises, such as to authorise the search pursuant to s 67(4)(a) of the Summary Offences Act 1953 (SA) (‘SOA’).
A voir dire hearing of the exclusion application proceeded before a Judge from 2 to 4 June 2020. On 28 August 2020, a ruling declining to exclude the evidence was delivered.[1]
[1] R v Zenuni [2020] SADC 118.
The trial by jury proceeded before a different Judge from 9 to 12 August 2021. At the conclusion of the prosecution case, the appellant was acquitted by directed verdict of a third count alleging that he had diverted electricity from a power system, contrary to s 85(1)(a) of the Electricity Act 1996 (SA). The appellant was convicted of Counts 1 and 2.
The appellant now appeals against his convictions. The appellant complains that the voir dire Judge erred in finding that the search was lawful and in declining to exclude the evidence derived from the search (Grounds 1 and 2). Further, the appellant contends that the trial Judge’s directions on possession and joint possession were inadequate and resulted in a miscarriage of justice (Grounds 3 and 4). The appellant also alleges that the trial Judge erred at law, or caused a miscarriage of justice, by leaving open to the jury the path of convicting the appellant of each charge according to the principles of joint criminal enterprise (Ground 5). Lastly, the appellant contends that the trial Judge erred in his directions to the jury concerning the application of the principles of joint criminal enterprise to the charged offences, in that the directions were inadequate and confusing and they failed to relate the principles of joint criminal enterprise to each of the charged offences, the different ways in which the prosecution put its case in relation to each of the charged offences, and the evidence (Ground 6).
The search
On 25 October 2016, police searched the Premises under the authority of a general search warrant held by DBS McCaffrey. The Premises was allegedly the appellant’s home address. No-one was present at the Premises at the time police executed the warrant. It was an agreed fact that Australian Border Force records showed that the appellant had departed Adelaide on 30 September 2016 and travelled to Albania and returned from Albania to Adelaide on 4 December 2016.[2] That is, he left Australia 25 days before the search and was not present in Australia at the time.
[2] Trial Exhibit P11 at [7]–[8].
During the search, police located within one of the sheds at the rear of the property three large drums holding a total of 112 plastic bags containing female cannabis plant material. Later analysis confirmed that there was 19.8 kg, 14.6 kg, and 17.4 kg of female cannabis plant material across the bags in those drums (Count 1). The appellant’s fingerprints were found on some of the plastic bags. Police also located and seized paraphernalia associated with hydroponic cannabis production, including 70 light shades, numerous light fittings, 85 light globes, four carbon filters, and 89 ballast boxes (Count 2). The power supply to the house was also found to have been diverted, with the electricity meter not registering the usage of electricity required to grow cannabis hydroponically (Count 3).
At the time of entry to the Premises on 25 October 2016, DBS McCaffrey had completed a document known as a ‘PD23A’ form setting out the execution of the general search warrant and the matters relied upon in forming his reasonable suspicion. After the search, he finalised that document. However, DBS McCaffrey acknowledged that he returned to the Premises on 26 October 2016 to complete a further search and did not complete another PD23A document. He said that this was an oversight by him.
Ground 1 – Unlawful search
The appellant applied for the exclusion of the evidence obtained by police during the search of the Premises on the basis that the search was unlawful. The appellant submits that police did not have the requisite suspicion required at law to search the Premises. He contends that the search was based on investigatory material obtained up until July 2016 and that the material was ‘stale’ by the time of the search conducted on 25 October 2016. It is submitted that there were no contemporaneous observations between July and October 2016 of any activity consistent with the Premises being used as part of a cannabis grow house operation, nor any recent material which supported a connection between the appellant and Premises. That there was no such material or information, despite surveillance of the property and an ongoing investigation into the matter, undermined the cogency or force of the earlier material which formed the basis for DBS McCaffrey’s reasonable suspicion. The appellant contends that DBS McCaffrey did not hold a reasonable suspicion as at 25 October 2016 which was capable of founding a lawful search under s 67(4)(a) of the SOA. Rather, his state of mind fell within the province of speculation and ‘mere idle wondering’.[3]
[3] See Queensland Bacon Proprietary Limited v Rees (1996) 115 CLR 266 at 303 per Kitto J.
The power to search
DBS McCaffrey was the holder of a general search warrant in October 2016 which had been previously issued in June 2016. The power to search the Premises existed under s 67(4)(a) of the SOA. That section relevantly provides:
67—General search warrants
…
(4)The police officer named in any such warrant may, at any time of the day or night, exercise all or any of the following powers:
(a)the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that—
(i)an offence has been recently committed, or is about to be committed; or
(ii)there are stolen goods; or
(iii)there is anything that may afford evidence as to the commission of an offence; or
(iv)there is anything that may be intended to be used for the purpose of committing an offence;
(b)the officer may break open and search any cupboards, drawers, chests, trunks, boxes, packages or other things, whether fixtures or not, in which he or she has reasonable cause to suspect that—
(i)there are stolen goods; or
(ii)there is anything that may afford evidence as to the commission of an offence; or
(iii)there is anything that may be intended to be used for the purpose of committing an offence;
(c)the officer may seize any such goods or things to be dealt with according to law.
The exercise of the powers pursuant to a general search warrant require police to hold a reasonable suspicion. In considering whether a police officer holds a reasonable suspicion pursuant to s 67(4)(a), the Court must undertake a two staged assessment: first, did the warrant holder in fact have a suspicion referable to one of the sub-paragraphs of s 67(4)(a); and second, if so, based on the information available to the warrant holder at the relevant time, was that suspicion reasonable.
Whether or not a suspicion is reasonable is a factual question which is to be decided on the balance of probabilities. It involves an objective test, with the court putting itself in the position of the warrant holder with their knowledge and asking whether, in the circumstances, the suspicion was reasonably held.
In R v Nguyen, the Court of Criminal Appeal (the ‘CCA’) made some observations as to the concept of reasonable suspicion.[4] The Court said:[5]
A suspicion that a fact exists is less certain than a belief in the existence of that fact. A belief is held on information which is accepted as reliable and implies a reasonable satisfaction that the fact is at least more likely to be true than any other alternative fact or facts. On the other hand, a suspicion that a fact exists, in the context of an investigation of the truth of that fact, is a working hypothesis for which there is some supporting material. There must be a rational connection between the supporting material and the suspicion. Mere curiosity, speculation or “idle wondering” about the existence of the fact is not the same as a suspicion that it exists.
Importantly, s 52(6) and (9) of the CSA require more than an actual suspicion; the police officers must not only suspect but “reasonably suspect” that the person possesses an illicit substance or that there is evidence of an offence against the CSA in a vehicle. The additional element of reasonableness means that the information or material from which the suspicion arises must not only rationally produce a suspicion in the mind of the police officer, but it must also engender that suspicion in the mind of a person thinking reasonably about that information. The evaluation of the reasonableness of this suspicion must be undertaken in the context of the purpose of the powers, and the civil liberties abrogated by their exercise. It is not reasonable to be overly incredulous at one extreme or naively gullible on the other. It is not reasonable to suspect the existence of facts on flimsy material or by a process of reasoning which relies on tenuous, albeit rational, connections. On the other hand, it would be unreasonable, and would deny the power much of its utility, to demand material which supports a positive belief in the existence of the relevant facts.
(citations omitted)
[4] (2013) 117 SASR 432 per Kourakis CJ, Blue and Stanley JJ.
[5] (2013) 117 SASR 432 at [21]–[22] per Kourakis CJ, Blue and Stanley JJ.
Suspicion is a less onerous state of mind to establish than belief or knowledge. However, the fact that the suspicion must be reasonable imports an element of objectivity into the assessment.
As Duggan J said in R v Rogers, it is relevant to note that the requirement for reasonableness attaches to the suspicion and this requires consideration of the circumstances as known by the police officer.[6] Justice Duggan also observed that suspicion may be based on a number of considerations, some of which may be more significant than others.[7] It may also be grounded upon matters which the police officer has personally observed or circumstances which have been reported to the police officer.[8]
[6] (2011) 109 SASR 307 at [21].
[7] (2011) 109 SASR 307 at [25].
[8] (2011) 109 SASR 307 at [22] per Duggan J.
Recently, in McHugh v The Queen, this Court considered the issue of ‘stale’ information in the context of a police officer forming a ‘reasonable suspicion’ in executing a general search warrant.[9] In that matter, the basis for the police officer’s suspicion was a Crime Stoppers report made on 15 February 2018. The search was not conducted until 31 May 2018. The trial Judge found that the police officer held a reasonable suspicion and declined to exclude the evidence obtained during the search. That ruling was upheld on appeal. In considering when information becomes stale, Kourakis CJ said:[10]
It is not possible to answer this question in the abstract and divorced from the facts of each particular case. The reasonableness of a suspicion requires attention to the reasoning process by which it is formed. In this case, the Judge properly identified the critical importance of the allegation that the applicant’s involvement was in large amounts of the drugs, that he was part of a large syndicate and was close to the centre of that operation. Importantly, given that the warrant was executed on the applicant’s residence, the information was that he kept everything inside his home.
It is in the nature of large drug trafficking operations that they continue for some time, and often until detected and disrupted by police. The period of some months between the report and the search did not therefore detract at all from the cogency of the information in the circumstances of this case.
[9] [2022] SASCA 5.
[10] McHugh v The Queen [2022] SASCA 5 at [11]–[12] per Kourakis CJ (with whom Lovell JA and Doyle JA agreed).
Police information giving rise to the search
DBS McCaffrey gave evidence that he understood he was required to have a reasonable suspicion in order to exercise the powers to search under the general search warrant. He gave evidence that he based his suspicion to search the Premises upon a combination of the following matters:
1.In 2015 and 2016, DBS McCaffrey was involved in the investigation of a cannabis syndicate involving Albanian nationals. A focus of that investigation was a Mr Ditran Garubi. He suspected Mr Garubi was involved in the cultivation of commercial quantities of cannabis and the operation of cannabis grow houses around Adelaide;
2.In January 2016, lawfully intercepted telephone calls between Mr Garubi and a Mr Darryn Pumpa suggested that Mr Pumpa (an electrician) was involved with Mr Garubi and had been requested by him to attend to a problem related to power supply at a house in Valley View. Mr Pumpa was observed attending at the Valley View premises, climbing onto the top roof space, and working at the point of an electrical feed into the house. A search of the Valley View premises in March 2016 revealed that it was a cannabis grow house. An electrical bypass was located at the same point where Mr Pumpa had previously been observed working;
3.Telephone records showed communications between Mr Pumpa and a mobile telephone number ending in 168 (and associated with the appellant) between 20 April and 3 July 2016. There were 78 communications. The calls were not monitored or recorded so there was no information as to the content of the conversations;
4.A tracking device was attached to Mr Pumpa’s vehicle in April 2016. Data from that tracking device showed Mr Pumpa attending at the Premises on eight occasions between 3 May and 4 July 2016;
5.Mr Pumpa was observed attending the Premises on 19 July 2016 and walking on the roof while holding an electrical conduit in his hands;
6.The appellant’s driver’s licence listed the Premises as his residential address;
7.Data received from Energy Australia concerning the electricity usage at the Premises between 17 April 2014 and 31 August 2016 was considered to be quite low for an occupied residential home. It appeared to be consistent with the presence of an electrical bypass;
8.DBS McCaffrey attended and observed the Premises during a three‑month period from July to 25 October 2016. Whilst he observed no further activity at the Premises after 19 July 2016, he said it appeared to be very secure; and
9.The appellant had a history of offending relating to cannabis cultivation from April 2001 until April 2011.

DBS McCaffrey gave evidence that he suspected cannabis was being grown at the Premises, that prescribed hydroponic equipment was being used to cultivate cannabis, and that there had been interference with an electricity meter to divert electricity at the Premises. He suspected that if police searched the Premises, they would find evidence of cannabis offences.
DBS McCaffrey explained his delay in searching the Premises in the following way:[11]
In my investigation into Mr Pumpa I was conducted [sic] a number of searches. I wanted to time the searches and space them apart so as to not alert them to the fact that an investigation was being conducted on Mr Pumpa.
[11] Voir Dire Transcript T88.24–7.
On the voir dire, the Judge considered DBS McCaffrey held a genuine suspicion and one which was reasonable. In considering the defence submission that the information underpinning DBS McCaffrey’s suspicion was stale by the time of the search, the voir dire Judge took into account his explanation for the delay. His Honour considered that DBS McCaffrey was following prudent police practice and procedures in gathering all of the evidence he could about Mr Pumpa before alerting him and others to the fact they were under investigation by searching the Premises. Significantly, the voir dire Judge was satisfied that the delay between July and October 2016 did not mean that as at 25 October 2016, DBS McCaffrey did not have a reasonable suspicion. The voir dire Judge said:[12]
DBS McCaffrey agreed that the general search warrant was to be executed when it suited the investigation of Pumpa, however, that does not logically or at all indicate that, at the relevant time of the search, DBS McCaffrey did not hold the relevant state of mind, or had turned his intention to that requirement. He held that state of mind in July, he continued to accumulate information but was obviously relying substantially upon the information obtained up to and including 19 July 2016. That does not, and cannot, logically mean that he did not have the appropriate state of mind on 25 October 2016.
[12] R v Zenuni [2020] SADC 118 at [70] per Slattery DCJ.
The voir dire Judge accepted DBS McCaffrey’s evidence that he still held a genuine suspicion as at 25 October 2016, notwithstanding that most of the material upon which he based his suspicion was within his knowledge by 19 July 2016. The only other matters brought to his attention after that date was the Energy Australia data (in which the low electricity readings appeared consistent with a bypass) and his observations of the Premises as well secured. DBS McCaffrey also had information that during a ‘flyover’ on 14 July 2016, the Premises emitted no heat signature associated with high levels of electricity used to cultivate cannabis.
The voir dire Judge also rejected defence counsel’s submissions that the absence of activity at the Premises and the fact there was limited further material informing his state of mind after July 2016 rendered his earlier suspicion unreasonable as at 25 October 2016. The voir dire Judge said:[13]
DBS McCaffrey kept the premises under active observation in the three months before 25 October 2016. He saw no activity and no change at the premises. He was possessed of the information concerning, for example, the electricity supply. There was no basis, factual or otherwise, for him to form any different view than the view that he formed on 25 October 2016. There was no lapse in time sufficient to affect the decision of whether there were reasonable grounds to execute the search warrant.
[13] R v Zenuni [2020] SADC 118 at [74] per Slattery DCJ.
As to defence counsel’s submissions about the failure by DBS McCaffrey to complete a second PD23A document after he returned to the Premises on 26 October 2016 and carried out a further search of the house, the voir dire Judge noted that DBS McCaffrey acknowledged that this was an oversight on his part. Whilst the voir dire Judge considered that the criticism was justified, he determined that DBS McCaffrey’s failure did not undermine the genuineness or reasonableness of his suspicion prior to executing the warrant.
A reasonable suspicion
We are satisfied that the information known to DBS McCaffrey at the time of executing the general search warrant was sufficient to support a reasonable suspicion that a cannabis offence or a cultivation of cannabis offence had been committed at the Premises and that prescribed equipment was being used to cultivate cannabis or that a search of the Premises would afford evidence of such offences.
The information in DBS McCaffrey’s knowledge indicated a link between Mr Garubi (a man suspected of cultivating cannabis in grow houses) and the electrician, Mr Pumpa. DBS McCaffrey was aware that Mr Pumpa had been observed conducting electrical work at a Valley View premises, which was subsequently searched and found to be a grow house. Thus, there was a link between Mr Pumpa and the cultivation of cannabis. There was then a connection between the appellant and Mr Pumpa through many telephone communications between April and July 2016. Although the content of those conversations was not known, it was the frequency of the communication which was of significance. Mr Pumpa’s vehicle was identified as being at the Premises on eight occasions between May and July 2016. On 19 July 2016, he was observed by police on the roof with a conduit in his hands. This conduct was consistent with bypassing electricity. The Premises was also registering low electricity usage consistent with an electrical bypass. Further, the appellant was directly associated with the Premises, it was listed on his driver’s licence as his residential address.
The appellant also had prior convictions for cannabis offences. This alone would not justify a reasonable suspicion. Indeed, it is not a matter of great weight, but it is a factor that DBS McCaffrey was entitled to take into account in considering whether he had the requisite state of mind to execute the general search warrant.
Thus, DBS McCaffrey had information which connected Mr Pumpa (a man associated with Mr Garubi and a broader cannabis syndicate) with the Premises. DBS McCaffrey also had information connecting Mr Pumpa to the appellant (who in turn had prior convictions for cannabis offending). There were also features to the Premises itself which were consistent with it being a cannabis grow house, namely that it was well secured and recorded a low level of electricity usage inconsistent with a residential household and suggestive of an electrical bypass. These matters, when considered in combination, were sufficient to give rise to a reasonable suspicion within the meaning of s 67(4)(a) of the SOA.
In relation to the three month delay between 19 July 2016 (when Mr Pumpa was last observed at the Premises) and the search on 25 October 2016, that lapse of time did not render the information or material in DBS McCaffrey’s knowledge insufficient to ground a reasonable suspicion. It did not detract from the cogency of the material. Nor did a three month delay mean that any information was inevitably ‘stale’.
Further, the fact there were no observations of activity at the Premises after July 2016 was not necessarily inconsistent with the Premises being used as a cannabis grow house. On the evidence of DBS McCaffrey, he had driven past the Premises only about once a fortnight. Activity at the Premises may have gone unobserved, or it may have been that a cannabis cultivation was being tendered to without direct human intervention, for example, by an automated watering system or hydroponic system.
As to appellant’s submissions about the failure by DBS McCaffrey to complete a second PD23A document after he returned to further search the Premises on 26 October 2016, we do not consider that this oversight detracted from the genuine nature of his suspicions or their reasonableness.
For those reasons, we are satisfied that DBS McCaffrey held a suspicion that cannabis was being cultivated at the Premises and that prescribed equipment was being used to cultivate cannabis, or that a search of the Premises would afford evidence of an offence of cannabis cultivation or use of prescribed equipment to cultivate cannabis. We are also satisfied that his suspicion was objectively reasonable. The voir dire Judge was not in error in finding that the search was lawful and in declining to exclude the evidence.
Given our conclusion that the search was lawfully carried out, it is not necessary to consider the discretion to exclude any illegally obtained evidence.
We dismiss Appeal Grounds 1 and 2.
Grounds 3 and 4 – Directions on possession and joint possession
The appellant complains that the trial Judge’s directions on possession and joint possession were inadequate. More particularly, he contends that the trial Judge failed to instruct the jury that a person can only be in possession or joint possession of an item if they know of its existence. The appellant also submits there was a failure to give the jury sufficient assistance in applying the concepts of possession and joint possession to the facts of the case.
Possession was the main issue in dispute at trial. The prosecution case was primarily put on the basis that the appellant was in joint possession of the cannabis and prescribed equipment located at the Premises.
In proof of the appellant’s possession or joint possession of the cannabis and prescribed equipment, the prosecution relied on the following pieces of circumstantial evidence:
1. That the appellant was the sole registered proprietor of the Premises;
2.That the appellant was living at the Premises. Whilst the cannabis was stored in the rear shed and the prescribed equipment was stored in both the workshop and the rear shed, the remainder of the property appeared to be used as a residence. Documents relating to the appellant and his family were found at the Premises, including photocopies of their passports located in the kitchen. No other persons were present at the Premises on the date of the search;
3.The Premises was well secured. The workshop and rear shed were both difficult to access and locked;
4.In addition to the prescribed equipment, a cannabis leaf was found on the floor of the workshop, suggesting on the prosecution case that cannabis had been grown, harvested, and packaged in the workshop and then stored in the rear shed. There was also expert evidence that it would take about three months to grow a crop of cannabis, that is, a longer time than the appellant was overseas before the search;
5.The cannabis was valued at between $250,000 and $370,000, if sold in pound lots. On the prosecution case, it was unlikely that a person would place an item of that value in another person’s shed if the other person was not in joint possession of the item;
6.The appellant’s fingerprints were located on eight of the plastic bags containing cannabis found in each of the three drums. His fingerprints were also found on two light shades of a type commonly used to grow hydroponic cannabis; and
7.Police observed Mr Pumpa on the roof of the Premises. Mr Pumpa was connected to a cannabis grow house at Valley View and associated with the appellant, as demonstrated by frequent telephone communications between the two men.
The appellant did not give or call evidence at trial. His counsel submitted that the prosecution had not proved that he was in possession of the cannabis and prescribed equipment, nor that he had any knowledge of it. It was not in dispute that the appellant was the sole registered proprietor of the Premises since 2014.[14] However, the appellant disputed that he had been living at the Premises before he left Australia or that he had any knowledge of the cannabis and prescribed equipment found there. The appellant had left Australia to travel to Albania about one month before the search.[15] Defence counsel submitted there was opportunity for someone else to place the cannabis and prescribed equipment in the sheds without the appellant’s knowledge.
[14] Trial Exhibit P11 at [4].
[15] Trial Exhibit P11 at [7].
Defence counsel relied on the following matters to challenge the prosecution assertion that the appellant was living at the Premises prior to the search: the low level of electricity used at the house was inconsistent with a family living there; documents found at the Premises provided a different residential address for the appellant; and that neither the appellant nor any family member were observed at the Premises whilst it was under police surveillance from July 2016.
In relation to evidence that the appellant provided the address of the Premises as his residential address to various government departments, defence counsel submitted that this was consistent with the appellant avoiding capital gains tax should the Premises be sold.
As to the appellant’s fingerprints on the plastic bags containing cannabis and on the lights, defence counsel submitted these were common household items and his fingerprints on those items was consistent with the appellant having innocently handled them at the property, not knowing that they were to be used (by others) in connection with cannabis.
It is evident that the appellant’s possession of the cannabis and prescribed equipment was the main issue in dispute at trial. The defence position was essentially that other persons (such as Mr Pumpa or persons unconnected with Mr Pumpa) became aware that the Premises was unoccupied and, unbeknownst to the appellant, used it as a place to cultivate, package and store cannabis. Defence counsel submitted that it was unlikely that a person would use his own premises to cultivate such a large quantity of cannabis given the risk of detection and then leave the country with at least one quarter of a million dollars’ worth of cannabis remining in his shed. Defence counsel characterised the appellant as a ‘bunny’ or scapegoat for an unlawful cannabis enterprise conducted by others.
Therefore, to find the appellant guilty of Counts 1 and 2, the jury would need to exclude two scenarios beyond reasonable doubt. First, that another person or persons placed the prescribed equipment at the Premises (presumably to cultivate the cannabis) and stored the cannabis at the Premises without the knowledge of the appellant. Second, that another person or persons stored the cannabis and prescribed equipment at the Premises, with the knowledge and acquiescence of the appellant, but he did not solely, or with another, intend to exercise custody and control of it.
It is to be noted that the prosecution also relied upon an alternate basis of liability for Count 1, namely that the appellant took part in the process of sale by taking a step in the process of sale by either; storing the drug, packaging the drug, concealing the drug, or allowing others to use the Premises, for the purpose of sale of the cannabis. This alternate pathway to guilt was not predicated upon establishing possession.
In summing up to the jury, the trial Judge instructed the jury on possession and joint possession in the following terms:
Possession does not mean ownership. Obviously you can possess something without necessarily being the owner of it. Possession means this; it means the power and the intention of exercising control over something to the exclusion of others. Let me illustrate by referring to your wallet or purse. Your wallet or purse may be in your pocket or handbag here in the courtroom; if so, it is clearly in your possession. But if it is in the glove box of your car in a nearby car park it is still in your possession. If it happens that you left it on your bedside table at home the wallet or purse is still in your possession. All three examples I have just given meet the legal requirement of possession because in each of these examples you have retained, or kept, both the power and the intention of exercising control over your wallet or purse to the exclusion of other people. Perhaps in the circumstances of this case I should give one further example. If you have a television in your sitting room at home and go for a holiday abroad, say you go to Europe or America, the television remains in your possession even though you are thousands of kilometres from it.
I say that possession means the power and intention of exercising control over something to the exclusion of others. I say to the exclusion of others or other people but I emphasise that possession may be joint; that is, two or more people may be in possession of the same thing at the same time. That is, they may possess it jointly. Go back to the television in your house. That may be possessed at this very moment by you and your partner even though you are in the courtroom listening to me and your partner is out shopping. Similarly, three neighbours may agree to split the cost of the purchase of a lawn mower with the intention of sharing it. Each of the three of them is in possession of the mower even though it is kept in the garden shed of only one of them. There, ladies and gentlemen, is the concept of possession.
In relation to Count 2, the trial Judge gave the following directions on possession:
I turn then to the elements of the offence charged in count 2, possessing prescribed equipment. To prove that offence the prosecution must prove two elements, first that the accused was in possession of the equipment in the sense in which I just explained possession to you, namely that the accused had the power and the intention of exercising control over the equipment to the exclusion of others. I remind you again that he could be in possession of the equipment while not physically near it. As I said, a person who is overseas can be in possession of something in Australia. I remind you again that two or more people can be in possession of the same thing at the same time.
The appellant contends that the trial Judge’s directions on the concept of possession and joint possession were inadequate.
As has been said on many previous occasions, possession is an elusive legal concept which can be difficult to explain to juries.[16]
[16]
Section 4(1) of the CSA defines ‘possession’ as including:
(a) having control over the disposition of the substance or thing; and
(b) having joint possession of the substance or thing;
The statutory definition does not appear to add to, or confine the common law meaning of ‘possession’.[17]
[17] R v Nguyen [2010] SASCFC 23 at [95] per White J.
The common law concepts of possession and joint possession are well‑established. A person has possession of an item if they have physical custody or control of the item or of the place in which the item is located, knowledge that the item is in their custody or control, and an intention to control the item.[18] However, mere knowledge of an item’s existence and whereabouts will not constitute possession. Physical control does not require immediate control. Nor does a person need to own an item to be in possession of it.
[18] R v Nguyen [2010] SASCFC 23 at [96] per White J.
A person is in joint possession of an item if he and another person or persons each have knowledge of the location of an item and intend, between them, to exercise control over the item to the exclusion of any other persons.[19] There must be some form of express or tacit agreement before an item could be in the joint possession of two or more people.[20]
[19] R v Nguyen (2010) 204 A Crim R 64 at [26] per Vanstone and Kelly JJ.
[20] R v Wood (2017) 131 SASR 291 at [12], [14] per Vanstone J (with whom Kourakis CJ and Nicholson J agreed).
In submitting that the trial Judge erred in failing to instruct the jury on possession, the appellant relied on R v GNN (‘GNN’).[21] In GNN, Doyle CJ said:[22]
Apart from giving appropriate general directions, there are several matters of significance that had to be dealt with in the direction given to the jury in this case.
First, it was important to explain to the jury that, in the circumstances, knowledge of the presence of the heroin was not enough. For example, satisfaction on the jury’s part that Ms GNN knew that one of the men had concealed the heroin in the house was not sufficient to establish that she was in possession of the heroin. Another matter which called for particular attention was to explain to the jury that before finding Ms GNN guilty they had to be satisfied that the heroin was not in the exclusive possession of one of the men who were at the house that night. Thirdly, it was necessary to emphasise the requirement to prove physical control over the heroin and an intention to exercise control over it. It was necessary to relate these matters to the facts, in a practical way, to avoid the risk of the jury convicting on an unreliable basis. It was necessary to give directions that dealt adequately with the possibility that the heroin was in the possession of one of the men found in the house.
[21] (2000) 78 SASR 293.
[22] (2000) 78 SASR 293 at [19]–[20] (with whom Prior and Olsson JJ agreed).

In relation to that passage in GNN, Vanstone J in R v Wood made the following observations:[23]
The passage in GNN relied on does not prescribe a particular approach to directing juries on possession. Certainly there is material there which judges may well find helpful in drafting directions suitable for the particular case before them. But each case turns up different facts and different issues. Generally speaking, the main requirement in terms of the elements of an offence is to clearly explain what is required in terms of proof. If that is done then it will not usually be necessary to provide a catalogue of what is not sufficient. Of course, if issues are muddied by counsel, or if the issue for determination can be honed by sweeping away some red herrings or straw men, then it may be helpful to dispose of those issues by directing that certain matters cannot prove the charge. It is true that the concept of possession, and particularly joint possession, can be a difficult one for jurors, who do not customarily think in such terms. For this reason examples are helpful. However, in the circumstances of this case, having considered the evidence and the directions, I am of the view that the legal issues were clearly laid out.
(emphasis in original)
[23]
In the present case, the appellant contends that the trial Judge’s directions were inadequate because at no stage was the jury instructed that a person can only be in possession of an item if they know of its existence. The appellant also contends that the trial Judge failed to give the jury adequate assistance in applying the concept of possession to the facts of the case and to the defence arguments that the appellant had no knowledge of the cannabis and prescribed equipment located at the Premises.
On the other hand, the respondent submits that the issues of possession and joint possession of the cannabis and prescribed equipment were the primary issues in dispute at trial. Submissions as to the question of whether the prosecution had proved possession were central to the closing addresses of both counsel. In particular, it was the focus of defence counsel’s closing address.
The respondent acknowledges that the trial Judge did not expressly direct the jury that, in proof of possession, the appellant must have had knowledge of the existence of the cannabis or prescribed equipment. However, the respondent submits that when considering the directions as a whole, as well as how the evidence unfolded at trial, it is doubtful that the jury would have been operating under any misapprehension that possession required the appellant to know of the existence of the relevant items; it was a topic which was the subject of lengthy submissions by both parties.
The respondent emphasises that during the defence closing address, the jury were urged to consider the possibility that someone other than the appellant exclusively possessed the items and that the items were at the Premises unbeknownst to the appellant. Defence counsel submitted that the appellant was merely a ‘bunny’, that is, he was a scapegoat for someone else who was responsible for the materials. In those circumstances, the respondent submits that there has been no miscarriage of justice.
It can readily be seen from the extracted parts of the summing up that the trial Judge instructed the jury that possession means having the power and intention to exercise control over an item to the exclusion of others. His Honour explained that possession does not mean ownership and that a person can possess an item without necessarily being the owner of it. The trial Judge then explained that possession may be joint, that is, two or more people may be in possession of the same thing at the same time.
However, as acknowledged by the respondent, at no stage did the trial Judge direct the jury that to prove possession or joint possession, the appellant must have had knowledge of the existence of an item. As discussed earlier, the defence arguments at trial focussed on the question of whether the prosecution had established that the appellant knew the cannabis and prescribed equipment were at the Premises. Defence counsel’s submissions as to the appellant’s lack of knowledge of the items was central to his defence at trial. That these issues were addressed at length by the defence did not relieve the trial Judge of the obligation to identify knowledge as an issue for the jury to consider and to assist the jury as to how that issue might be approached in the circumstances of this case. The fact that defence arguments were recited by the trial Judge was in the circumstances of this case, no substitute for proper jury directions.
In light of this, it was therefore necessary for the trial Judge to instruct the jury on the concepts of possession and joint possession with express reference to the question of the appellant’s knowledge of the items. The trial Judge was required, in the circumstances of this case, to explain to the jury several matters. First, the fact the cannabis and prescribed equipment was found at a Premises of which the appellant was the registered proprietor was not sufficient to prove his possession of the items. Second, that a person can only be in possession of something if they have knowledge of its existence. Third, that even if the jury found that the appellant had knowledge of the cannabis and prescribed equipment at the Premises and acquiesced in it being placed there by others, without more, he would not be in possession of the items.
It was also necessary for the trial Judge to assist the jury in applying the concepts of possession and joint possession to the facts of the case. Later in his summing up, the trial Judge set out the submissions of counsel to the jury. Whilst his Honour outlined defence counsel’s arguments as to why the jury might have a reasonable doubt that the appellant was living at the Premises, he did not relate those submissions to the question of the appellant’s knowledge of the cannabis and prescribed equipment and, in turn, to the legal concepts of possession and joint possession.
In the absence of those legal directions, there was a significant risk that the jury would reason that if they found that the appellant had knowledge that the cannabis and prescribed equipment was present on the Premises, or the jury found that the appellant knowingly acquiesced in those items being placed on the Premises, he was necessarily in possession of the items.
It is not to the point that counsel made detailed submissions as to the appellant’s knowledge or lack of knowledge of the items. What was required of the trial Judge, in the circumstances of this case, were clear judicial instructions that proof of knowledge of the items was one of the essential requirements in establishing possession; and importantly, that the appellant’s knowledge, or knowing acquiescence of the cannabis and prescribed equipment being stored at his Premises was not sufficient, without more, to prove possession.
The respondent also submits that there were two pathways to liability put to establish the element of trafficking; the alternate path being that the appellant took part in the process of sale, which does not rely upon establishing possession. That is so, but it is unclear by which path of liability the jury reached a finding of guilt. That cannot be an answer to the inadequacy of the directions on possession. There were also no directions as to the circumstances in which a finding that the appellant knowingly acquiesced in the cannabis and prescribed equipment being placed at the Premises may have constituted taking part in the process of sale of the drug. Those directions were necessary in the circumstances of this case.
The respondent further submits that in returning a verdict of guilty on Count 1, the jury must have found proved the third element; namely, that the appellant knew the item was a controlled drug. Thus, the respondent submits that it can be inferred that the jury were satisfied that the appellant had knowledge of the existence of the cannabis. However, that submission overlooks the fact that even if the jury were satisfied that the appellant knew of the cannabis (and prescribed equipment), and indeed knowingly acquiesced in it being placed at the Premises, those findings were not sufficient to prove possession. It does not ameliorate the trial Judge’s failure to give the jury any directions to that effect.
Bearing in mind the importance of the issues of possession and joint possession in this case, and how central the appellant’s knowledge or lack of knowledge was to both counsel’s arguments as to the issues of possession and joint possession, we are satisfied the directions given by the trial Judge were inadequate and gave rise to a miscarriage of justice.
We allow the appeal on Grounds 3 and 4.
Grounds 5 and 6 – Joint enterprise
The appellant contends that the trial Judge erred at law, or caused a miscarriage of justice, by leaving open to the jury the path of convicting the appellant of each charge according to the principles of joint criminal enterprise. The appellant also contends that the trial Judge erred in his directions to the jury concerning the application of the principles of joint enterprise to the charged offences.
The prosecution case was initially not based on the principles of joint criminal enterprise. Rather, it was alleged that the appellant was part of a broader cannabis trafficking syndicate involving other persons. As part of that broader syndicate, he was alleged to be in joint possession of the cannabis and prescribed equipment with others or, in the alternative, taking part in the process of sale of the drug.
The prosecution did not submit that the appellant was acting in concert with others, nor rely on principles of accessorial liability to prove the offences against the appellant. For example, it was never the prosecution case that another person was in sole possession of the cannabis, but the appellant was guilty of the offence because he was party to a joint enterprise with them. Rather, the prosecution alleged that the appellant was in joint possession of the drugs with another or took part in the process of sale of the drugs as part of a broader drug trafficking enterprise involving others. That needs to be contrasted with a reliance on the principles of joint criminal enterprise, which was not how the prosecution case was put at trial, nor a pathway to liability relied upon in proof of the offences.
In R v Nguyen (‘Nguyen’),[24] the CCA considered the applicability of the concept of extended liability to joint possession. In that matter, the trial Judge gave a direction suggesting that one way of proving possession by the appellant was establishing that she and another were in joint possession of the drugs and were acting in concert for the purpose of one or the other selling the drugs. It was contended that the directions concerning joint possession were inadequate, and in effect, confused proof of a joint intention to sell the drugs with the concept of joint possession. It was argued that in order to prove joint possession, the prosecution was required to establish that the appellant and another were ‘acting in concert on the issue of possession, not the issue of an intention to sell’.[25]
[24] (2010) 108 SASR 66; (2010) 204 A Crim R 64; [2010] SASCFC 23.
[25] (2010) 204 A Crim R 64 at [23] per Vanstone and Kelly JJ.
In dismissing the appeal, Vanstone and Kelly JJ said:[26]
It can readily be seen that the concept of acting in concert could be usefully employed in a context where the prosecution asserts that the two accused were jointly in possession of a quantity of the relevant substance for the purpose of supplying it. However, as a general rule, we do not think introduction of the idea of a joint enterprise into an explanation of the concept of joint possession would be helpful.
…
Here the prosecution case was primarily that the appellant, alone, possessed the drugs. The drugs were in her house and immediate control. However, the jury were entitled to consider the possibility that she and Cabral were in joint possession of them. They would have been in joint possession of them if they each had knowledge of the location of the drugs and intended, between them, to exercise control over them, to the exclusion of any other persons. We do not consider that the judge was really saying any more than this. No doubt, proof of as much would imply some agreement, spoken or unspoken, either in relation to this particular cache of drugs, or perhaps in relation to some earlier edition. But proof of a joint enterprise between them, that is, that they were acting in concert as to the future disposition of the particular drugs is not essential to proof of possession itself. Indeed, we would not encourage the application of the use of the words “acting in concert” to the concept of possession. It is unnecessary. We are not suggesting that there would have been anything wrong, in technical terms, with a direction which included the notion of acting in concert as to future sales; but that direction would be unnecessary and would add complexity.
[26] R v Nguyen (2010) 204 A Crim R 64 at [25]–[26].
Justice White, in allowing the appeal, explained the differences between the concepts of joint possession and joint enterprise in the context of instructing the jury as to proof of joint possession. His Honour said:[27]
Persons have joint possession if they share possession of the item in question. “Acting in concert” is simply a way of describing the sharing of control. No doubt the sharing of control will often have a basis in some agreement, tacit or otherwise, but the critical feature is the shared control, and not the antecedent agreement.
This being so, it was not necessary for the prosecution to prove, as a separate matter, some arrangement or understanding between the appellant and Mr Cabral in relation to possession of the drugs. This particular complaint concerning the Judge’s directions therefore fails.
(citation omitted)
[27] R v Nguyen [2010] SASCFC 23 at [109]–[110].
As Kourakis CJ explained in R v Colenso, joint possession is an element of the actus reus of an offence and not the basis of accessorial or other extended liability.[28] Persons who jointly possess an unlawful item, such as drugs, commit the offence as it is constituted. The offender is not held liable by the principles of joint enterprise for the actus reus of an offence performed by another.[29]
[28] [2016] SASCFC 128 at [43] (with whom Nicholson and Hinton JJ agreed).
[29] R v Colenso [2016] SASCFC 128 at [43]–[44] per Kourakis CJ (with whom Nicholson and Hinton JJ agreed).
In the present matter, the issue is slightly different from that raised in Nguyen, and concerns whether joint enterprise should have been left at all as a pathway to liability for the offences.
The trial Judge raised the question of whether a direction on joint enterprise was required. Both the prosecutor and defence counsel agreed that a joint criminal enterprise direction should be given. Each counsel addressed the concept of a joint criminal enterprise in their closing addresses.
In summing up, the trial Judge said:
Ladies and gentlemen, you will remember [the prosecutor] telling you in his opening address to you and again this morning that it is the prosecution case that Mr Zenuni was acting with others in an enterprise of trafficking in cannabis. That is, the prosecution case is that he was in possession of the cannabis in the bins albeit in possession of it with other people. The prosecution also says that he was in possession of the prescribed equipment, again with other people. In those circumstances I give you a direction about what we call joint criminal enterprise.
If two or more persons join together in a joint criminal enterprise, every act done by one of them in furtherance of that enterprise is in law done by all of them. In other words, the combined actions of two or more persons with a common criminal intent in implementing an arrangement previously agreed upon by them may make them all guilty of any resulting crime. That is a crime that results from the agreement. The law considers that in such circumstances each person is acting both on his own account and on behalf of all the other persons concerned. The concept of a joint criminal enterprise implies the persons concerned are, as it were, acting as a team to achieve a mutually agreed result.
I give you an example. If two men agree to rob a bank and, further, agree that one of them will go into the bank and the other will remain outside in a get-away car with the engine running, keeping watch, and that agreement is then implemented then both men can be found guilty of the crime of robbing the bank. The man who waited in the car could be equally guilty with the man who went into the bank despite that man in the car did not ever set foot in the bank.
Here the prosecution case is that Mr Zenuni was a party to an agreement with other people to traffic in the cannabis found at Mr Zenuni’s premises. Part of the agreement was also for the prescribed equipment to be stored at Mr Zenuni’s premises. If you are to convict Mr Zenuni of either of these charges on the basis of joint criminal enterprise then that enterprise, joint enterprise must be established to your satisfaction beyond reasonable doubt.
Ladies and gentlemen, a joint criminal enterprise is usually a matter of inference from proved circumstances. You look at the proved circumstances related to the accused in light of the evidence as a whole then you decide whether those circumstances in combination justify the inference or conclusion beyond reasonable doubt that there must have been a joint criminal enterprise between the accused and other persons to commit these two offences.
Perhaps I should add this; to prove the joint enterprise, you must be satisfied beyond reasonable doubt that the accused had agreed with one or more other people, that he participated in the agreement, and that while the agreement was still on foot so to speak he and the others committed the necessary acts and finally, that he intended to commit those acts.
It is readily apparent that the trial Judge’s directions did not explain how the appellant participated in the joint criminal enterprise with others. That is presumably because the conduct relied upon by the prosecution to allege that he participated in a joint criminal enterprise with others was the very conduct which founded the allegations that he was in joint possession of the cannabis and prescribed equipment, or alternatively, by which he took part in the process of sale of the drugs.
In the circumstances of this case, it was unnecessary for the trial Judge to give the jury any directions on joint criminal enterprise. The appellant’s liability for the offences was not put on the basis of a joint criminal enterprise. It was never alleged that any of the conduct relied upon to establish the actus reus of either offence was performed solely by another person. It is a separate question whether those directions resulted in a miscarriage of justice by undermining the trial Judge’s directions on joint possession.
The appellant contends that in the absence of any express directions which explained how the appellant participated in the joint criminal enterprise with others, there was a risk that the jury may have reasoned that another or others (not the appellant) were in sole possession of the unlawful items and that the appellant was guilty of the offence because he was party to a joint criminal enterprise with that person or persons. This was in circumstances where there was insufficient evidence to establish any agreement and there were no directions as to what acts constituted the appellant’s participation. In our view, it is unlikely that there was any risk of the jury reasoning in that way. That is so given the prosecution case was always put on the basis that the appellant was in joint possession of the cannabis and prescribed equipment, or in the alternative, that he took part in the process of sale by taking the steps of storing, packaging, or concealing the drugs for the purpose of sale or allowing the Premises to be used for that purpose. In those circumstances, we do not consider there is any real risk that the jury would have reasoned in the suggested impermissible manner, notwithstanding the absence of any specific directions as to the conduct which constituted his ‘participation’.

Whilst the trial Judge’s directions on joint enterprise were unnecessary and were apt to lead to confusion, we are satisfied that they did not ultimately result in a miscarriage of justice.
We dismiss Appeal Grounds 5 and 6.
Proviso
Pursuant to ss 158(2) of the Criminal Procedure Act 1921 (SA), the proviso permits this Court to dismiss the appeal only if it considers that no substantial miscarriage of justice has occurred. For the Court to apply the proviso and dismiss the appeal, it must reach the conclusion that the convictions were inevitable.[30]
[30] Weiss v The Queen (2005) 224 CLR 300 at [39]–[40] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ; Baini v The Queen (2012) 246 CLR 469 at [33] per French CJ, Hayne, Crennan, Kiefel and Bell JJ.
Possession was the main issue in dispute at trial. For the reasons articulated in relation to Grounds 3 and 4, the directions were erroneous and the jury may have reasoned improperly in reaching the finding that the appellant was guilty of both Counts 1 and 2. Upon a comprehensive review of the record of the trial, we are not satisfied that in the absence of those errors it was not open to the jury to entertain a reasonable doubt as to the appellant’s guilt. Further, the erroneous directions on possession and joint possession were apt to prevent the jury’s performance of its proper function.[31] This has resulted in a substantial miscarriage of justice. For those reasons, we would not apply the proviso.
[31] Lane v The Queen (2018) 265 CLR 196 at [48] per Kiefel CJ, Bell, Keane and Edelman JJ.
Conclusion
Leave to appeal on Grounds 2 to 6 is granted.
The Court allows the appeal against conviction on Grounds 3 and 4, sets aside the appellant’s convictions, and remits the matter to the District Court for retrial.

R v GNN (2000) 78 SASR 293 at [21] per Doyle CJ (with whom Prior and Olsson JJ agreed);

R v Baftiroski
[2018] SASFC 83 at [34] per Nicholson J (with whom Kourakis CJ and Parker J agreed); R v Wood (2017) 131 SASR 291 at [18] per Vanstone J (with whom Kourakis CJ and Nicholson J agreed).

R v Wood (2017) 131 SASR 291 at [18] (with whom Kourakis CJ and Nicholson J agreed), cited in

R v Baftiroski
[2018] SASCFC 83 at [32] per Nicholson J (with whom Kourakis CJ and Parker J agreed).