Catanzariti v The Queen - [2019] HCATrans 99

[2019] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A2 of 2019

B e t w e e n -
SAVERIO FRANK CATANZARITI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 17 MAY 2019, AT 9.31 AM

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR T.J. MORAN, for the applicant. (instructed by Iles Selley Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: I appear with MR R.I. WALKER for the respondent. (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases. Simply put, the first question warranting a grant of special leave, in our submission, is does the rule of evidence known as the co‑conspirators rule apply when the basis of liability to which it attaches – that is, joint enterprise – does not exist as a matter of law?

Under the Controlled Substances Act (SA), by a combination of sections 4, 32 and 33S, which the Court can find in the application book at pages 244 to 255, Parliament has abolished, in our submission, all criminal liability for offences under section 32, with which we were charged, based on any form of derivative liability so that every participant who is charged with taking a step in the process of the sale of drugs is convicted and punished as a principal regardless of whether he or she is what is commonly termed a principal or an agent.

Accordingly, it is our submission that the co‑conspirators rule of evidence cannot apply because there is no basis of liability as a matter of law to attach it to. We say that because the co‑conspirators rule, being founded on agency principles, is an exception to the hearsay rule and applies where joint enterprise, as a matter of law, is a pathway to conviction.

We say also that it must follow that if the rule applies to cases where joint enterprise, as a matter of law, is neither an element of the charge nor the particulars of the charge, the hearsay evidence which would be admissible otherwise via the rule would then go in as pure hearsay. That, we submit with respect, is the effect of the decision of the Chief Justice forming the majority in this case.

In our respectful submission, this application raises for this Court’s consideration the two diametrically opposed interpretations of this Court’s decision in Handlen v The Queen (2011) 245 CLR 282. The Chief Justice in the majority, relying on Handlen, holding that the co‑conspirators rule of evidence does not depend on liability being based upon participation in a joint enterprise as a matter of law, and Justice Vanstone in dissent holding that the absence of joint enterprise as a matter of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] HCATrans 99
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Catanzariti, against the judgment of the Supreme Court of Victoria, Court of Appeal. The applicant had been convicted of a number of offences, including aggravated burglary and assault, and sentenced to a term of imprisonment. The central dispute on appeal concerned the admissibility of certain evidence obtained from the applicant's mobile phone.

The primary legal issue before the High Court was whether the evidence obtained from the applicant's mobile phone was unlawfully obtained, and if so, whether it should have been excluded from admission at trial under section 138 of the *Evidence Act 2008* (Vic). This section requires a court to exclude evidence if the evidence was obtained in contravention of an Australian law and its admission would be contrary to the public interest, having regard to the factors specified in the section. A further issue arose regarding the proper application of the principles governing the admission of evidence of prior consistent statements.

The High Court held that the search of the applicant's mobile phone was conducted without a warrant and without lawful authority, constituting a contravention of an Australian law. However, the Court found that the admission of the evidence was not contrary to the public interest, applying the balancing exercise required by section 138. The Court reasoned that while the contravention was serious, the probative value of the evidence was high, and there were no other significant factors that would render its admission contrary to the public interest. The Court also found no error in the admission of the evidence of prior consistent statements.

The appeal was dismissed.

Orders