Section 33S of the Controlled Substances Act 1984 (SA), which excludes accessorial liability under s 267 CLCA for trafficking offences, does not abrogate the co-conspirators rule of evidence. Statements of co-participants made in the course of a criminal enterprise remain admissible as to their truth on trafficking charges, provided there is independent evidence of pre-concert. However, Vanstone J's dissent raises a substantial question whether joint enterprise is available at all under the trafficking provisions, which may require further appellate consideration. Where admissibility of evidence is contested on a stay application, the proper course is generally to permit the prosecution to lead its evidence and entertain a no-case submission at the close of the prosecution case.
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