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…