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…
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- Zenuni v The King [2022] SASCA 106
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CaseChat Overview and Summary
The legal issues before the Court of Criminal Appeal included whether the trial judge's directions to the jury on the concept of possession, and specifically joint possession, were erroneous. The Court was required to determine if these directions were likely to have led the jury to reason improperly in reaching its verdict, and whether, in the absence of such errors, it was open to the jury to entertain a reasonable doubt as to the appellant's guilt. The Court also considered whether these errors amounted to a substantial miscarriage of justice, and if the proviso in section 353(1) of the *Criminal Law Consolidation Act 1935* (SA) should be applied.
The Court found that the directions given on possession and joint possession were erroneous and likely prevented the jury from performing its proper function. Consequently, the Court was not satisfied that, absent these errors, the jury could not have held a reasonable doubt regarding the appellant's guilt. This led the Court to conclude that a substantial miscarriage of justice had occurred, and therefore, the proviso would not be applied.
The Court granted leave to appeal on several grounds, allowed the appeal against conviction on the grounds relating to the erroneous directions, set aside the appellant's convictions, and remitted the matter to the District Court for a retrial.
Orders
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