Director of Public Prosecutions (Cth) v Kola [2024] HCA 14

HIGH COURT OF AUSTRALIA

GAGELER CJ,

STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

DIRECTOR OF PUBLIC PROSECUTIONS (CTH) APPELLANT

AND

ALFRED KOLA RESPONDENT

Director of Public Prosecutions (Cth) v Kola

[2024] HCA 14

Date of Hearing: 15 February 2024

Date of Judgment: 17 April 2024

A21/2023

ORDER

1. Appeal allowed.

2. Set aside the orders of the Court of Appeal of the Supreme Court of South Australia made on 19 May 2023 and, in their place, order that the appeal to that Court be dismissed.

On appeal from the Supreme Court of South Australia

Representation

J T Gleeson SC with C J Tran and R D Thampapillai for the appellant (instructed by Commonwealth Director of Public Prosecutions)

T A Game SC with A J Culshaw for the respondent (instructed by Dadds Jandy Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Director of Public Prosecutions (Cth) v Kola

Criminal practice – Trial – Directions to jury – Conspiracy – Where respondent found guilty of conspiracy to import commercial quantity of border controlled drug contrary to ss 11.5(1) and 307.1(1) of Criminal Code (Cth) – Where s 11.5(7A) provided that any special liability provisions that apply to an offence apply also to offence of conspiracy to commit that offence – Where s 307.1(3) provided absolute liability applies to physical element of offence of importing border controlled drug – Where Court of Appeal of Supreme Court of South Australia found element of conspiracy charged was that conduct in which conspirators agreed to engage would have resulted in importation of a commercial quantity had agreement been successfully executed – Where Court of Appeal found evidential material concerning what would have been imported confined to conduct in which respondent agreed to engage and circumstances in which respondent believed and intended conduct to be carried out – Whether trial judge failed to properly direct jury on element of offence regarding quantity – Whether trial judge's directions wrongly permitted jury to have regard to conduct of co‑conspirators engaged in outside of respondent's presence in determining scope of conspiratorial agreement.