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The High Court allows the CDPP’s appeal in a case involving a conspiracy to import a commercial quantity of border controlled drugs: the decision in Kola

Year
2024
Location
South Australia

Partner Agency: South Australia Police

On 17 April 2024, the High Court handed down judgment in the matter of Director of Public Prosecutions (Cth) v Kola [2024] HCA 14. In doing so, the Court unanimously allowed the CDPP’s appeal. The case concerned elements and directions that are permissible in conspiracy cases, and also the operation of the co-conspirators’ rule.  

The decisions below

In September 2022, following a trial by jury, Mr Kola was found guilty of one count of conspiracy to import a commercial quantity of border controlled drugs, namely cocaine. The trial judge’s directions were consistent with the directions identified in Standen v The Queen [2021] NSWCCA 187 (Standen).

Mr Kola successfully appealed his conviction to the Court of Appeal of the Supreme Court of South Australia in the decision Kola v The King [2023] SASCA 50. The Court held that the trial judge erred in her directions to the jury regarding the commercial quantity element of the underlying offence. Specifically, the Court of Appeal considered the trial judge failed to properly direct the jury that it was an element of the offence of the conspiracy charge that the accused had entered into an agreement with others to import a quantity of cocaine which, if the offence was executed, would have been a commercial quantity. In this way, the Court of Appeal indicated that the approach taken in Standen was not to be preferred, and that directions should have instead been made in accordance with the Victorian Court of Appeal’s decision in Le v The Queen [2016] VSCA 100 (Le).

The Court of Appeal further held that the trial judge erred in that she permitted the jury to have regard to the conduct of the accused’s co-conspirators, engaged in outside of the accused’s presence, in determining whether the weight of the border controlled drug would have been a commercial quantity.

The High Court appeal

The CDPP appealed each of the matters above. In its judgment handed down on 17 April 2024, the High Court unanimously allowed the CDPP’s appeal on both grounds, and held there was no error in the trial judge’s directions. 

In dealing with the first ground of appeal, the Court declined to prefer, much less mandate, the directions in Le or Standen, and held that “[e]ither approach may suffice”: [38]. The Court noted, though, that each approach carried its own risks, but that those risks could be dealt with by way of appropriate further explanation by the trial Judge: [38]. The Court emphasised the need for a trial judge to direct the jury that the prosecution must prove that the scope of the conspiratorial agreement was to import a commercial quantity of a border controlled drug, but that the prosecution need not prove that the accused intended to import a commercial quantity of that drug (and the distinction between those two matters): see, for example, [38].

In dealing with the second ground of appeal, the Court made several observations about the application of the co-conspirators’ rule in determining the existence and scope of a conspiratorial agreement, citing with approval several statements of principle derived from Ahern v The Queen (1988) 165 CLR 87. The Court observed that in cases where acts and declarations of an accused’s co-conspirators outside the accused’s presence depart from the scope of the agreement, the trial judge may be required to give a specific direction about the use that can be made of that evidence: [46].

Related links

  1. Kola v The King [2023] SASCA 50

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