Catanzariti v The Queen - [2021] SASCA 110

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
CATANZARITI v THE QUEEN
[2021] SASCA 110
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable President Kelly and the Honourable Justice Doyle)
14 October 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
Appeal against convictions on four counts of trafficking in a large commercial quantity of cannabis and one count of trafficking in a large commercial quantity of 3,4 methylenedioxymethamphetamine (MDMA) following trial by judge alone in the District Court of South Australia.
Counts 1 to 4 relate to shipments of 35, 19, 28 and 30 pounds of cannabis, respectively. Count 5 relates to a shipment of 20,079 tablets of MDMA. Prosecution alleged that the appellant sourced the cannabis and MDMA in South Australia and procured others to prepare, package and transport these substances to Western Australia for sale.
The prosecution case comprised three substantial bodies of evidence:
1.   intercepted telephone conversations;
2.   the observation of the movements, and items found in possession, of the appellant’s associates; and
3.   income received by the appellant and his wife over about a 13 month period.

On appeal, the contentions raised were that the Judge erred in:
1.   treating the evidence relating to Counts 4 and 5 as cross-admissible on the first three counts;
2.   admitting the discreditable conduct evidence (intercepted telephone calls and unexplained wealth evidence) for the purpose of demonstrating that the appellant was in the business of drug-trafficking;
3.   admitting evidence that the appellant was in the business of trafficking cannabis in aid of proof of trafficking methylamphetamine as charged in Count 5;
4. law in failing to direct herself in accordance with s 34R of the Evidence Act 1929 (SA);
5.   admitting evidence of acts and words of others in the absence of or which were not adopted by the appellant; and
6.   finding the acts or words of the co-accused were done or said in the furtherance of a common purpose to commit the charged acts.
The appellant further appealed on the basis that the verdicts of guilty were unreasonable or could not be supported having regard to the evidence.
Held, (per Kourakis CJ, Kelly P and Doyle JA agreeing) dismissing the appeal:
1.   the Judge correctly used evidence relating to Count 4 in support of her Honour’s finding that the identity of the substance supplied as charged in Counts 1, 2 and 3 was cannabis;
2.   the Judge correctly used the discreditable conduct evidence of intercepted telephone conversations and unexplained wealth;
3.   the Judge did not use the evidence of the appellant’s participation in the supply of cannabis as propensity evidence to prove Count 5 other than insofar as the evidence of the former showed that the appellant coordinated the activities of his associates;
4.   the Judge correctly directed herself on the use of the appellant’s involvement in trafficking cannabis and/or pills as evidence that the appellant was engaged in the business of trafficking those drugs, correctly warned herself against bad person reasoning and adverted to other non-propensity uses of discreditable conduct evidence;
5.   the evidence of the acts and statements of the appellant’s associates were correctly admitted;
6.   the evidence proved that the appellant trafficked cannabis and MDMA as charged.
R v Tran [2017] SASCFC 99, applied.
Tripodi v The Queen (1961) 104 CLR 1; Ahern v The Queen (1988) 165 CLR 87; R v C, S [2018] SASCFC 125; R v Corak and Palmer (1982) 30 SASR 404; R v Jackson and Hakim (1987) 30 A Crim R 230, discussed.
R v Forrest [2016] SASCFC 76; R v Jones [2018] SASCFC 96; Kroni v The Queen [2021] SASCFC 15; R v Perara-Cathcart (2017) 260 CLR 595, considered.

CATANZARITI v THE QUEEN
[2021] SASCA 110
Court of Appeal – Criminal: Kourakis CJ, Kelly P and Doyle JA

KOURAKIS CJ: The appellant appeals against his convictions on four counts of trafficking in a large commercial quantity of cannabis and one count of trafficking in a large commercial quantity of 3,4 methylenedioxymethamphetamine (MDMA) following his trial by judge alone in the District Court. The counts particularised on the information were:
1.Trafficking a large commercial quantity of cannabis between 1 November 2012 and 20 November 2012 (Count 1).
2.Trafficking a large commercial quantity of cannabis between 1 October 2013 and 6 October 2013 (Count 2).
3.Trafficking a large commercial quantity of cannabis between 8 October 2013 and 16 October 2013 (Count 3).
4.Trafficking a large commercial quantity of cannabis between 12 November 2013 and 15 November 2013 (Count 4).
5.Trafficking a large commercial quantity of MDMA between 12 November 2013 and 15 November 2013 (Count 5).
Count 1 relates to a shipment of 35 pounds of cannabis, Count 2 a shipment of 19 pounds of cannabis and Count 3 a shipment of 28 pounds of cannabis. Count 4 relates to approximately 30 pounds of cannabis and Count 5, 20,079 tablets of MDMA.
The prosecution alleged that the appellant sourced cannabis and MDMA in South Australia and procured others to prepare and package it for transportation to Western Australia where it was sold to Dominic Condo (Condo). On the prosecution case, the cannabis was transported by Peter Mindis (Mindis), an interstate truck driver, initially secreted in freight trucks he drove on the long-haul route from Adelaide to Perth and later in his luggage on train journeys. Another of the appellant’s associates, Leah Tilley, was primarily engaged to bring back cash payments from Condo.
The prosecution case comprised three substantial bodies of evidence. First, there was evidence of intercepted telephone conversations between the appellant, Condo, and those who assisted the appellant to receive, package and transport the cannabis and MDMA to Western Australia. In addition to the couriers to whom I have already referred, the appellant was assisted by his wife, Carolyn; his mother, Caterina; his brother, Antonio; his sister, Anna; and her husband, Vincent. I will refer to them collectively as the appellant’s associates. The conversations were direct evidence of the arrangements made between the appellant and his associates in respect of substances to which they only cryptically referred.
The second body of evidence was the observation of the movements of, and items found in the possession of, the appellant’s associates on 14 and 15 November 2013. The appellant and Carolyn resided at the corner of Claremont and Ballara Streets, Mile End. Anna and Vincent lived in rented accommodation at 240 South Road, Mile End, a little to the north of the junction of Ballara Street and South Road. Caterina and Antonio lived on North Parade, Torrensville.
The family and associates of the appellant were placed under surveillance in mid-November 2013. Evidence was given of their movements, to and between the appellant’s home and the homes of Caterina and Anna, on 14 November 2013. At about 6.00 pm on 14 November 2013, Mindis was approached by police on a platform at the Keswick Railway Terminal. Large commercial quantities of cannabis and MDMA were later found in his luggage. The prosecution contended that an inference could be drawn that the movements between the homes of the appellant, Caterina and Anna were connected to the drugs found on Mindis. The importance of the discovery of cannabis and MDMA on Mindis following the flurry of activity in which he and the appellant’s associates had engaged, was the light it shed on the identity of the substances, which they had been careful not to name in the intercepted conversations over the preceding two days and, indeed, the preceding 12 months.
On 15 November 2013, police searched Anna’s house and found scales, a heat-sealing machine and latex gloves, on one of which MDMA residue was detected. A plastic bag in her house smelt of cannabis. At Caterina’s Torrensville premises police found a cannabis head stripper, a vacuum sealing machine and cannabis fragments.
The third body of evidence was the income received by the appellant and his wife, Carolyn, over about 13 months from 1 November 2012 to 30 November 2013.
The appellant appeals on the following grounds:
1.that the Judge erred in treating the evidence relating to Counts 4 and 5 as cross‑admissible on the first three counts;
2.the Judge erred in admitting the following discreditable conduct evidence for the purpose of demonstrating that the appellant was in the business of drug‑trafficking;
·    intercepted telephone calls;
·    unexplained wealth evidence;
3.the Judge erred in admitting evidence that the appellant was in the business of trafficking cannabis in aid of proof of trafficking methylamphetamine as charged in Count 5;
4.the Judge erred in law in failing to direct herself in accordance with s 34R of the Evidence Act 1929 (SA) as to:
·    the permissible and impermissible use of evidence concerning Counts 4 and 5 in aid of proof of Counts 1 to 3;
·    the permissible and impermissible use of evidence that showed that the appellant was involved in the business of trafficking illicit drugs or cannabis in aid of proof of trafficking a large commercial quantity of methylamphetamine as charged in Count 5;
5.the Judge erred in admitting evidence of acts and words of others in the absence of or which were not adopted by the appellant;
6.the Judge erred in finding the acts and words of Condo, Antonio, Caterina and Anna in the absence of or which were not adopted by the appellant were done or uttered in the furtherance of a common purpose to commit the charged acts;
7.the verdicts were unreasonable and cannot be supported having regard to the evidence because:
·    the evidence was insufficient to establish that the appellant had a propensity to traffic illegal drugs or cannabis at a time proximate to Count 1;
·    as to Counts 1, 2 and 3 the trafficked cannabis was never found nor seized by the police and the circumstantial evidence was insufficient to establish the existence, nature and quantity of substance transacted, if any, nor to establish the appellant’s intention to traffic in not less than a large commercial quantity of cannabis;
·    as to all counts, the evidence was incapable of establishing that the appellant trafficked cannabis or MDMA by directing others to package and transport it to Western Australia for sale to Condo.
I would dismiss the appeal. The Judge did use the evidence of the cannabis found on Mindis (Count 4) in support of her Honour’s finding that the identity of the substance supplied to Condo as charged in Counts 1, 2 and 3 was cannabis and was correct to do so for several reasons. First, the references in the intercepts to the substance trafficked in the first three counts and the arrangements made to traffic it were so similar to the references to the cannabis found on Mindis, after very similar arrangements had been made, that it was very probable that it was the same substance. Secondly, the evidence on Count 4 disclosed that the appellant had at his disposal organisational and financial resources to traffic in large commercial quantities of cannabis. Thirdly, the evidence on Count 4 was one of many items of evidence which showed that the appellant was at all relevant times engaged in the trafficking of cannabis. The appellant accepts that the Judge did not rely on the evidence relating to the MDMA found on Mindis to reason guilt on the first four counts.
As I have already observed, the intercepted telephone conversations were direct evidence of the making of arrangements to handle, deliver and package substances and were therefore strongly probative of the trafficking offences to which they were directly connected. Ground 2 must be dismissed. The impugned evidence showed that the appellant was the coordinator of an organisation with the human and financial resources to traffic in cannabis and MDMA from South Australia to Western Australia in the 12 months spanning Counts 1 to 5. Furthermore, the dynamics of a drug trafficking enterprise drive its continuing operation from one offence to the next. It was therefore strongly probative evidence of motive and propensity. The intercepted calls were, for that reason, strongly probative of his guilt on all counts and outweighed the prejudicial effect arising out of the exposure of the appellant as a person who was willing to traffic in drugs. The evidence of the appellant’s wealth was strongly probative on Counts 1, 2 and 3, and of the intermediate fact that he was engaged in a business of trafficking in cannabis, and MDMA, because trafficking in cannabis and MDMA was capable of generating that part of his income for which there was no other explanation.
The premise of ground 3, which was that the Judge used the evidence of the appellant’s participation in the supply of cannabis as propensity evidence to prove his participation in the supply of MDMA, is unfounded. The Judge did not do so other than insofar as the evidence of the former showed that he coordinated the activities of his associates who followed his directions.
The complaint of the inadequacy of the Judge’s directions in ground 4 must fail. The Judge correctly directed herself on the use of the appellant’s involvement in trafficking cannabis and/or pills, other than the offence charged, as evidence that the appellant was engaged in the business of trafficking those drugs. The Judge also correctly warned herself against bad person reasoning. The Judge referred, albeit without much explication, to other non-propensity uses of the discreditable conduct evidence. The brief references to those uses in her Honour’s reasons give no reason to apprehend a miscarriage of justice.
The evidence of the statements of the appellant’s associates was correctly admitted to prove that the substance trafficked was a large commercial quantity of cannabis in Counts 1 to 3 and that it was sold to persons in Western Australia because there was reasonable evidence, other than the statements of the appellant’s associates, that the appellant and his associates were participants in a joint enterprise to source, package and sell cannabis to persons in Western Australia. It was not necessary to adduce reasonable evidence that each of the participants had joined an arrangement to commit the precise offences charged, that is, sale to Western Australia of large commercial quantities of those drugs, in order to render their statements admissible. Grounds 5 and 6 must be dismissed.
The evidence of the conversations proved that the appellant trafficked cannabis and MDMA as charged. The appellant’s attack on the ambiguity of individual items of evidence fails to address the combined force of the totality of the evidence. Ground 7 must be dismissed.
Discreditable conduct – the Judge’s directions
Before turning to the evidence in detail, it is important to understand the way in which the Judge approached the discreditable course of conduct of engaging in drug transactions revealed by the intercepted telephone conversations. The Judge divided the discreditable conduct into two periods. The first comprised calls made between 12 November 2012 and 18 January 2013 (the first trading period) and the second comprised calls made between 15 June 2013 and November 2013 (the second trading period). In the Judge’s ruling on the admissibility of the discreditable conduct, revealed by the intercepted telephone conversations, her Honour ruled that the conversations showed that the appellant was engaged in the business of trading in drugs in each of the periods but not in one continuous business over the entire 13 months:[1]
[18]However, I do not consider any of the intercepted calls constituting the first three chapters are admissible to prove that the accused was involved in the business of trafficking drugs as relevant to counts 2 to 5. The first count is particularised as having occurred in early November 2012. There is an invervening period of almost 5 months between call 23 (18/1/13) and call 24 (15/6/2013). During that period, there is no evidence of any controlled drug activity by the accused. Counts 2 to 5 are alleged to have been committed in October and November 2013, almost 12 months after the first count. Further, the first count on the evidence allegedly involved the accused, Dominic Condo and Peter Mindis. The latter four counts involve numerous other participants. On the prosecution case, the change in the ‘business structure’ of the accused’s alleged drug trafficking is explained by the arrest of Dominic Condo in January 2013, and the accused’s arrest in April 2013, and the accused’s subsequent and necessary caution in avoiding any direct contact with Dominic Condo and their drug couriers. Notwithstanding those matters, and given the significant intervening period from January 2013 to June 2013, during which there is no evidence of any continued drug trafficking by the accused, I am not satisfied that any of the calls in the first three chapters are admissible as evidence of the accused’s propensity to engage in the business of trafficking drugs as relevant to prove counts 2-5. I do not consider there to be sufficient evidence of a continuity of participation by the accused in the business of trafficking controlled drugs such as to find the evidence of calls 1-23 to have strong probative value on counts 2-5.
[1] R v Catanzariti (No 2) [2021] SADC 12 at [18].
The Judge gave herself the following directions on the use of that evidence:[2]
[2]     R v Catanzariti [2021] SADC 11 at [41]-[47].
Intercepted telephone calls relevant to Count 1
…
[41]I am satisfied that each of the calls in the first three chapters, [calls made between 12 November 2012 and 18 January 2013] considered collectively, support an inference that the accused had in the recent past trafficked in illicit drugs, and that he was in the business of trafficking drugs at a time proximate to Count 1. The evidence supports an inference of the accused’s continued participation in the business of trafficking illicit drugs at a time which was proximate to Count 1. The accused’s propensity or disposition to traffic in drugs is relevant to prove that the accused took part in the sale of a controlled drug, the subject of Count 1.
[42]Further, all the intercepted telephone calls numbered 1 to 127 (except those calls excluded in the earlier evidentiary rulings) were admissible in proof of Count 1 for non-propensity purposes, namely, to:
·       introduce the various participants in the calls and to identify those participants’ voices and general activities;
·       reveal the identities of participants who are not specifically named in the communications (when viewed in combination with other evidence);
·       identify the phone services used by the various participants;
·       explain the relationships between the various participants tending to reveal an ongoing operation (of some sort) and a hierarchical structure;
·       establish a pattern of the participants speaking in guarded and vague terms, and switching from English to Italian, when discussing matters relevant to arrangements and business dealings;
·       reveal the true meaning of coded words and phrases (when the telephone calls are viewed as a whole); and
·       reveal the accused’s use of private individuals acting as couriers between South Australia and Western Australia.
Intercepted telephone calls relevant to Counts 2 to 5
[43]In respect of the intercepted telephone calls numbered 24 to 127 (referred to by the prosecution as chapters 4 to 9) [calls made between 15 June 2013 and November 2013], some of the intercepted telephone calls which were not directly relevant to a charged Count, were admissible to prove the accused had a propensity to engage in the business of trafficking in controlled drugs and relevant to Counts 2 to 5. The admissible telephone calls related to the following topics from which the prosecution sought to infer the accused’s propensity to traffic in illicit drugs:
·       The accused or his associates obtaining new telephone services evincing that the accused’s business was an illegal one because he was frequently changing telephone services to avoid police detection.
·       The payments of money by others for uncharged drug transactions.
·       The movement and activities of PM and DC in respect of uncharged drug transactions.
[44]I am satisfied that each of the intercepted telephone calls in chapters 4 to 9, ruled to be admissible for a propensity purpose, when viewed collectively, support an inference that the accused was in the business of trafficking drugs at a time proximate to Counts 2 to 5. The evidence supports an inference of the accused’s continued participation in the business of trafficking illicit drugs and a propensity or disposition to traffic in drugs, relevant to prove that the accused took part in the sale of a controlled substance, the subject of Counts 2 to 5.
[45]Further, all intercepted telephone calls numbered 1 to 127 (except those calls excluded for other reasons) are admissible for the non-propensity purposes for the reasons outlined earlier in respect of Count 1.
[46]As to the impermissible use of the intercepted telephone calls relevant for a propensity purpose to prove Count 1, and relevant to prove Counts 2 to 5, it would be wrong to reason from that evidence alone that the accused is a man of general bad character and therefore more likely to have committed any of the charged offences. It is also impermissible to reason from that evidence alone that the accused is necessarily guilty of any of the charged offences, or to substitute any of the uncharged acts for any one of the charged offences.
[47]I also make clear that I have not used any of the intercepted telephone calls which are admissible only for a non-propensity purpose in respect of a charge to prove that the accused was in the business of trafficking illicit drugs, or to prove that the accused had a propensity to traffic in illicit drugs.
(Footnotes omitted)

I draw attention to the following:
·the separate findings with respect to each trading period in paragraphs [41] and [43] reflect the Judge’s ruling and impliedly preclude the use of the intermediate fact found in respect of each period to prove the commission of an offence/s alleged to have been committed in the other period;
·the strong warning as to impermissible use in paragraphs [46] and [47];
·the identification of a permissible propensity use of the discreditable conduct evidence through the intermediate finding that the appellant was engaged in the business of trafficking in illicit drugs at relevant times;
·the non-propensity use of the evidence identified in the fourth to sixth dot points in paragraph [42] establish the probability that the drugs discussed were cannabis and MDMA and that the appellant was coordinating an ongoing hierarchical organisation.
Several of the appellant’s complaints about the Judge’s approach can immediately be dealt with. On ground 1, the appellant objects that the Judge was wrong to use the 14 November evidence on Counts 1, 2 and 3. The appellant’s submission that that use relied exclusively on propensity reasoning both misunderstands the Judge’s reasons and elides the distinction between improbability and propensity reasoning in the circumstances of this case. The primary purpose of the intercept conversations was twofold. First, they revealed the identity of the two different drugs referred to in those conversations to be cannabis and MDMA. That is the non-propensity use identified in dot point [6] in paragraph [42]. The second use is to reveal the roles of the appellant’s associates in the drug enterprise. That is the non-propensity use identified in dot points [4] and [7]. In addition, even though not mentioned by the Judge, the evidence showed that the appellant had the financial and human resources to traffic in cannabis and MDMA. The probability that the cryptic conversations concerned the appellant’s participation in the trafficking of cannabis and MDMA is dramatically increased when it is shown he had those resources. Finally, the evidence of the course of drug trafficking in which the appellant was engaged was strongly probative of his commission of all of the offences charged because it showed that he was in the business of trafficking in those two drugs.
I acknowledge that the Judge’s partition of the course of conduct into two trading periods is inconsistent with the use of the evidence in Count 4 in that way, but in that respect the Judge’s division was unduly favourable to the appellant.
Unexplained wealth
It is convenient to deal first with the evidence of unexplained wealth because it is circumstantial evidence of the offending charged in each count and of the intermediate fact that the appellant was engaged in the business of trafficking cannabis and MDMA. The evidence of the appellants unexplained wealth was given by Ms Christina Evangelou, a senior forensic accountant employed by SAPOL. She analysed bank accounts which the appellant and his wife were known to hold and a substantial amount of financial documentation. She testified that over the 13-month period covered by the charges, from 1 November 2012 to 13 November 2013 they received government benefits totalling $59,251. There was no evidence that the appellant or his wife had received share dividends or other lawful income from assets or investments. Ms Evangelou testified that there was a large inflow of cash in, and expenditure on, their racehorses and betting activities, resulting in a net loss, over that period, of $30,845. In the 13-month period the household receipts totalled $474,913, of which no less than $60,856 was cash, the source of which could not be identified. A total of $20,841 in cash was deposited into accounts without any identification of its source.
On the basis of Ms Evangelou’s evidence, the Judge was satisfied that the accused had received at least $60,000 cash from unidentified sources during the charge period. After considering alternative explanations for the source of that cash, the Judge found that the evidence of the unexplained cash receipts circumstantially supported an inference that the accused was engaged in the business of trafficking illicit drugs during the period of the charges. However, the Judge gave herself a warning that it would be impermissible to reason from the evidence of unexplained wealth that the accused was a man of bad character generally and for that reason alone more likely to have committed any of the charged offences:[3]
[69]I am satisfied on the basis of Ms Evangelou’s evidence that the accused and his wife had an unexplained inflow of cash of at least $60,000 during the period in which the accused is alleged to have committed the charged offences. I am also satisfied that the evidence of unexplained cash circumstantially supports an inference that the accused was engaged in the business of trafficking illicit drugs during the charged period, and that evidence is in turn relevant to prove that the accused was taking part in the sale of illicit drugs, the subject of each Count. However, it would be impermissible to reason from this evidence that the accused is a man of general bad character and therefore more likely to have committed any of the charged offences, or to assume that the accused is necessarily guilty of any of the charged offences because of his unexplained wealth.
[3] R v Catanzariti [2021] SADC 11 at [69].
The unexplained receipt of large amounts of cash in the period covered by the charges supports an inference that the accused profited from criminal activity during that period. That is so for a number of reasons. First, most people do not keep, or are careful to conceal, records of their receipt of the proceeds of crime. On the other hand, there will generally be records of the payment and receipt of lawfully earnt income unless both parties are engaged in tax evasion or social security fraud. Secondly, and more importantly, the wealth was ‘unexplained’ because there was no evidence of the provision of lawful goods or services by the appellant, or that he had the skills or earning capacity to lawfully generate the wealth and income identified by Ms Evangelou.
As I have already observed, the horse racing related activities produced a loss. The only apparent source of the wealth was therefore the appellant’s dealings with Condo, which must, therefore, have been very lucrative. Detective Hunt’s evidence was that supplying cannabis and MDMA in bulk quantities was a profitable enterprise. It is in that way that the appellant’s unexplained wealth circumstantially supported an inference that he was engaged in the trafficking of cannabis charged in Counts 1, 2 and 3, and that those offences occurred in the course of a business of trafficking in cannabis. It could not support his guilt on Counts 4 and 5, other than through the intermediate fact that he engaged in the business of trafficking cannabis and MDMA, because the intercepted conversations show that the payment for the substances he supplied to Condo came after their delivery.
In the Judge’s ruling of the admissibility of the evidence of unexplained wealth, her Honour referred only to its use as propensity evidence through an intermediate finding that the appellant was engaged in the business of drug trafficking. As I have observed, the appellant’s unexplained wealth did support the intermediate finding of fact that the appellant was engaged in a profitable criminal enterprise. However, it is another thing to find that that enterprise was one of trafficking in all illicit drugs or a particular drug or drugs. A finding of that kind could only be made, as the Judge observed in her ruling, together with other evidence. There was strong evidence that the appellant was trafficking in cannabis on the occasion charged and between November 2012 to November 2013 for the reasons given below. There was strong evidence that he was trafficking in MDMA in the references to a pill like substance in the appellant’s conversations with Condo in November 2012 and the appellant’s connection with the MDMA found on Mindis in November 2013. The Judge’s references to ‘illicit drugs’ must be understood, therefore, to refer to cannabis and MDMA. The Judge’s partition of the appellant’s ‘drug’ business into two parts, late 2013 and mid- to late 2013, causes a disconnect in the use of the evidence of unexplained wealth as evidence of trading in MDMA in late 2013. However, as we shall see, the Judge’s finding in that respect was unduly favourable to the appellant and the evidence was admissible, and strongly probative, of a continuing enterprise of trafficking in cannabis and MDMA.
In the reasons for verdict, the Judge did not refer to the use of the evidence as circumstantial evidence directly supporting a finding of guilt on each count. That omission too was unduly favourable to the appellant.
Accordingly, in the absence of any lawful source for the appellant’s wealth and income, an inference can be drawn that it was derived from an unlawful activity or activities, in this case trafficking in cannabis and MDMA and the commission of the offences charged in Counts 1 to 3 in particular.
Count 1
I turn now to the other prosecution evidence adduced in support of Count 1, leaving aside for now the discreditable conduct evidence of the appellant’s trading in cannabis at times before and after the period charged in Count 1. The prosecution alleged in respect of Count 1 that the appellant trafficked in a large commercial quantity of cannabis between 1 November and 20 November 2012.
Mindis was a contracted truck driver with a freight haulage firm between 18 May 2012 and 18 August 2013. In that time, he was engaged to drive a truck from Wingfield in South Australia to Kewdale in Western Australia and back. He undertook that return journey on about four or five occasions each month. Each round trip took about six days to complete. Mindis departed Wingfield for Kewdale on 6, 13, 20 and 27 October 2012 and on 3, 10, 17 and 24 November 2012. In the period of time spanned by Count 1, Mindis arrived in Kewdale on the round trips to which I have referred on 5, 12 and 19 November 2012.
On 12 November 2012, a day on which Mindis arrived in Perth, the appellant and Condo spoke by telephone (call 1). They discussed the telephone services they should use to communicate with each other. The appellant advised Condo to throw away ‘the one you have ben (sic) texting me on …’. The discussion then turned to a woman who was travelling back from Perth to deliver something from Condo to the appellant. The appellant complained to Condo that the thing she was bringing to Adelaide should be wrapped because ‘she always touches mate, I keep on telling you’. It is likely that by touching the appellant meant taking because he later commented that in respect of an earlier delivery ‘… there was 300 missing …’. That conversation evidences cash payments made by Condo to the appellant at times before the delivery of cannabis charged in Count 1.
The appellant then informed Condo that he would send him ‘… maybe forty or fifty and that’s it’. Condo replied ‘… Yeah cos this one guy… he reckons he will take as many as you can’. There are then more cryptic references to ‘the eye’ and the ‘little things’. The word, spoken in English, was transcribed as ‘eye’ but might have also been the letter ‘I’. Relevantly, whichever is the case, Detective Hunt testified that ecstasy pills were sometimes stamped with an identifier. The words ‘little things’ were spoken in Italian. Later in the conversation, the words ‘little ones’ and ‘pills’ were also uttered in Italian. The appellant later referred to a small guy who wanted him to take ‘… 50,000 of them …’ but said that he, the appellant, wanted to test them first. There followed more references to ‘the white’ and the ‘eye’.
The appellant then said, ‘… if we can do one every month and one of [the Italian word for] green a month’ before continuing:
If I can get half the gear from the [Italian word for] nose and half the gear from the eye …, Yeah the point is that we need to build our money and then we can do more.
As I have indicated by the bracketed words, the word ‘nose’ was spoken in Italian. I interpolate here that the conversation so far suggests that the appellant’s and Condo’s arrangements concerned two different substances, one described as ‘green’ and the other sold in quantities of tens of thousands of little items that required to be tested. In the light of Detective Hunt’s evidence, the inference can be drawn that the ‘green’ was cannabis and the other drug MDMA.
Condo urged the appellant to ‘… send as many [books] as you can cause this guy will take em’. The word ‘books’ was spoken in Italian. Detective Hunt explained that tightly packed cannabis has an appearance in size and shape to a book and is sometimes referred to as such. The appellant complained that it was becoming hard to source the substance to which they were referring. The appellant explained to Condo that he may be left in some difficulty if Condo only returned ‘80’ because it would leave him owing ‘a little more’. That reference reinforces the inference, arising from the complaint that the unidentified woman ‘always touches’, that Condo was sending the appellant cash amounts. Condo held out the hope that he will have ‘more next week’. The appellant then enquired of Condo how he would deliver ‘the more’ because the appellant could not ‘… send her there every time just to pick up’. The appellant asked whether Condo could ‘send any with the old boy tomorrow night’. Mindis was scheduled to leave Kewdale on 13 November 2012. Condo equivocated but thought that he might.
The coincidence between Mindis’ itinerary and the references to the old man support the inference that Mindis is the old man to whom they refer. It can be inferred from the discussion that arrangements by which Mindis delivered cannabis to Condo were in place before the supply charged by Count 1.
There was then the following exchange on Condo’s distribution of product sent by the appellant to Condo in Western Australia:
Appellant:Did you give em all to him? Did you ask (unintelligible), did you give them all to him
Condo:     No half half
Appellant:   Oh Ok,
Condo:     One took 15 the other took 20
Detective Hunt testified that cannabis was sold in bulk in pound units. The appellant then said that he did not want to rely on credit for his transactions and repeated that ‘[o]nce we build the bank then we got no problem’. The appellant raised buying a four-wheel drive so that he could ‘… send them in the car’. Condo told the appellant that he didn’t want any more of the ‘little ones’, if they are the ones that had just been sent, because they ‘… are not as good as the [Italian word for] yellow’. Detective Hunt gave evidence that ecstasy tablets were manufactured in different colours so that users could source their preferred product and that the popularity of particular ‘brands’ fluctuated over time.
On 16 November, the day on which Mindis arrived back in Adelaide from Perth, the appellant spoke to Condo by telephone (call 2). After some preliminaries, the appellant asked if Condo had sent something with the ‘… old person? Condo replied in the negative. The appellant told Condo that he needs something ‘… early next week …’. Condo assured the appellant that he has ‘… quite a bit’ coming tomorrow. The appellant enquired whether it was ‘… worthwhile sending her or … just … just via the post?’. Condo responded that he hoped that it would be between fifty and a hundred. The appellant informed Condo that he has ‘… eighty ready for next week …’ and that he had to ‘… give money’.
Condo then raised concerns about the substance being really ‘wet’ and ‘getting mould’. Condo said that both people had complained and that he didn’t want to ‘… lose these guys’. The appellant brought the conversation back to whether Condo would send what he had by post or not. Their conversation then turned to a substance they described as ‘little ones’ and to a discussion of ‘the green’.
The evidence of the conversation in call 2 provides additional support for the inferences which can be drawn from call 1, that the appellant was sending Condo cannabis and MDMA in pill form, for which Condo was paying in cash sent back to the appellant shortly after delivery, so enabling the appellant to secure further supplies of those drugs.
On 19 November 2012, a day on which Mindis arrived in Perth, the appellant and Condo spoke again (call 3). Condo raised the complaints made by the two persons to whom he had referred in the last call. Condo explained that they did not want to pay for the products supplied to them. He reported that one of them had told him that he lost ‘two ounces … out of one’ [presumably pound]. He informed the appellant that they had held back $10,000 and that after holding that back Condo had ‘fifty’. If by fifty Condo meant $50,000, and that together with the $10,000 was the price of the 35 pounds of substance supplied, it is much less than the price of cannabis of which Detective Hunt testified. However, it may be that other payments had been, or were still to be, made, leaving a balance of the $10,000 which was held back.
The appellant told Condo that he would send her ‘tomorrow evening’. Condo asked whether the appellant would want to give it to ‘the old man?’. The appellant replied that he, the old man, wouldn’t be back in time. Mindis left Perth on 20 November 2012 and arrived in Adelaide on 22 November 2012. Leah Tilley flew from Adelaide to Perth on 20 November 2012. She returned on 21 November and travelled from Adelaide airport to the appellant’s home on 21 November. Call 3, and itineraries of Mindis and Tilley, strengthen the inference that the appellant was supplying cannabis to Condo through Mindis, and that Tilley was used to collect the cash payment for it in time for the appellant to procure further supplies.
Returning to call 3, Condo again mentioned the men who were complaining and the following conversation took place:
Condo: Whatever happens, it has to be fixed up or else they’re not going to buy anymore. (pause) And I don’t wanna to lose ‘em.
The appellant:      Well, the – tell ‘em we gotta meet halfway. We can’t lose it ourselves.
Condo:             Well, I’m just saying – but no – but you tell those, fuckin’, pricks –
The appellant:     I’ve already told these people and they’ve said ‘no way, that’s how we always do it.’
Condo:             Yeah, well that’s, fucken-tell ‘em it’s fucken’ no good then.
Condo then said, ‘I did a few of those little ones … yesterday’.
On 20 November 2012, they spoke again (call 4). Condo informed the appellant that he had tested the product that had been returned to him and that ‘… it lost one and a half … fix it or they’re not gonna buy these other ones’. Condo suggested meeting the dissatisfied purchasers halfway. The appellant and Condo calculated one and a half by 35 to be about 50. The appellant agreed to send ‘… two extra ones …’ and that Condo could work it out with the men who were complaining.
Thirty-five is the sum of the twenty and fifteen referred to in call 1 on 12 November 2012 when Condo told the appellant he had distributed the substance, likely to be cannabis, supplied by the appellant to two different people in those amounts. The ‘one and a half’ coincides with the loss of weight reported by Condo in call 3. However, two pounds is only 32 ounces. The result, 50, of their multiplication, is the number of ounces which was necessary to make up the loss of weight suffered by the purchasers. It can be inferred that the appellant proposed sending over only the two additional pounds to meet the purchasers ‘half way’. That inference is further supported by Condo’s complaint that the purchasers had held back $10,000. Detective Hunt testified that the price of cannabis in bulk quantities in Western Australia was between $3,600 and $4,500 per pound. If the purchasers were acting reasonably, having lost between 2 and 4 pounds they could be expected to hold back between $7,200 and $18,000.

On 26 November 2012, the appellant and Condo spoke again (call 6). They discussed ‘the old man’ arriving. Mindis arrived in Perth at 2.00 pm on that day. Condo asked if the appellant had sent the ‘little ones’ with him. The appellant answered that he had not, prompting Condo to warn that he was down to ‘one or two’. The appellant said that he would try to send them on the following weekend. That is the last of the obvious references to a drug in pill form in the intercepted conversations before 14 November 2013.
During call 6 Condo told the appellant that he had given ‘those two’ to the men who had complained and that they were now happy. The appellant commented that the ‘five and a half’ sent yesterday (Mindis had left Wingfield on 24 November) were the best he had ever seen. That conversation supports that a delivery of better quality cannabis was made by Mindis after the supply the subject of Count 1. Together with similar references in earlier conversations, it supports the intermediate finding of fact made by the Judge that the appellant was engaged in a course of conduct of trafficking cannabis to Condo before and after the delivery charged in Count 1.
During call 6 the appellant urged Condo to ‘send the money because I don’t want to carry too much myself.’ That exhortation confirmed that Condo was making payments to the appellant; the reference to carrying too much being an expression of the appellant’s concern about his exposure to credit transactions.
Mindis left Kewdale on 27 November 2012 and arrived in Adelaide on 29 November 2012. Mindis left for Perth again on 1, 6 and 15 December 2012. Leah Tilley travelled by train from Adelaide to Perth on 13 December 2012 and returned on 15 December 2012. Tilley’s short return trip to Perth supports an inference that she collected a cash payment made for yet another delivery and further supports the Judge’s intermediate finding of fact that the appellant trafficked in cannabis before and after the supply charged by Count 1.
On 5 January 2013, Mindis left Wingfield for Kewdale at about 9 am. His log shows that he arrived in Northam in Western Australia at 11 am on 7 January 2013. On 6 January 2013 Mindis called Condo to tell him he had arrived at Northam and they arranged a meeting (call 15). There appears to be a discrepancy between the driver’s log and the timing of those phone calls, but it is not clear why that is so. Mindis travelled on to Kewdale, from where he called a taxi to pick him up but did not give the address of his destination.
In summary, the evidence of the telephone conversations between the appellant and Condo is direct evidence of arrangements made by them for the supply of at least two substances. The cryptic nature of the conversation supports an inference that it was unlawful to traffic the substances. The first was an organic substance which was sold in pounds for substantial amounts and could lose weight as it dried, and was therefore very likely to be cannabis. Subject to the appellant’s contentions concerning the scope of the co‑conspirator’s rule, the conversations therefore evidence the actual delivery of incompletely dried cannabis as charged in Count 1. The other was a substance likely to be sold and ingested in pill form and was very likely to be MDMA.
The evidence therefore clearly established that the appellant was supplying illegal products to Condo. The appellant’s defence at trial, that the vegetable product might have been tax free tobacco, recognised the inevitability of that finding. It is important to appreciate that the probative use of the evidence, on Count 1, of arrangements made in the second half of 2013 to supply product into Western Australia was primarily to add to the proof that the produce supplied was cannabis as charged by Count 1.
The arrest of Condo
On 8 January 2013 at about 5 pm, Mindis departed from Kewdale and arrived at Wingfield on the 10^th at about 5 pm. On 11 January 2013, the appellant spoke to Mindis by phone and asked him to visit before he left on the next day. Mindis asked him ‘what have you got’. The appellant replied ‘little ones, little ones’.
On 11 January 2013, Condo was arrested in Western Australia and charged with four counts of possessing a prohibited drug with intent to sell or supply, and possess an unlicensed firearm. Prior to his arrest, Condo was seen to be in possession of a pill press.
In the early hours of 12 January 2013 at 3.49 am (South Australian time), an unidentified person called the appellant and told him that his mate was ‘fucked … really fucked … really really really fucked.’ He told the appellant that ‘they know your name here’. The appellant asked what had been taken and his interlocutor replied ‘everything’.
Later that morning, at 11 am, Mindis left for Perth from Wingfield.
At 2.01 pm on the same day, the appellant spoke by telephone to another man, who used the name George, and informed him that Condo was ‘gone … Big … big … big … big time’. The appellant complained to George that he had lost everything, having ‘put’ 337 dollars on ‘that horse’. Detective Hunt testified that drug traffickers commonly referred to a monetary sum using a base number as the multiplicand and leaving unsaid the multiple of 10 to be applied to it, because it is understood between them. The available inference is that Condo was the losing ‘horse’ on which the appellant had ‘put 337 dollars’. The appellant also seemed to know that Condo’s legal advice was that he was facing 15 years imprisonment. He informed George that Condo was already asking for ‘lefta’ – a Greek word meaning ‘money’.
Condo was released on bail on 12 January 2013.
On 13 January 2013, the appellant spoke to Leah Tilley and told her that ‘Mimo (a nickname for Condo) went down real bad’. On 18 January, Antonio phoned Mindis, who had arrived back in Adelaide on 17 January 2013. Mindis asked Antonio to pass a message to the appellant that he wanted to speak to him. Antonio replied that the appellant would not be able to call him. Mindis then said ‘something happened last week and I wanna talk to him. That’s why’. Antonio replied, ‘Yeah … he knows what happened up there’.
The conversations between the appellant and George, and subject to the operation of the co-conspirator’s rule, the conversations between appellant’s associates, support the inference that the appellant had suffered a financial loss as a result of his dealings with Condo, which it can be inferred were illegal because of their reticence to speak openly about them. That in turn supports the intermediate finding of fact made by the Judge that the appellant had been in the business of trafficking in cannabis at the end of 2012.
From 29 April 2013 until 16 November 2013, the appellant was on electronically monitored home detention bail at his Mile End address.
On 1 July 2013, the appellant and Condo spoke by telephone (call 38). The appellant urged Condo to do something quickly. Between June 2013 and September 2013, telephone calls between the appellant and other of his associates suggest that he was communicating with Mindis and Condo through them. The conversations also support an inference that the appellant, Antonio and Anna were making arrangements, the precise nature of which they were anxious not to mention in their conversations. In that period, Mindis continued to make long haul freight trips between Adelaide and Perth until August 2013.
On 12 September 2013, Mindis left Adelaide by train and arrived in Perth on 14 September 2013. He returned to Adelaide by plane on 16 September 2013. The evidence supports an inference that illegal activities were planned and perhaps undertaken but does not provide additional evidence tending to identify that offending or the manner of any substances supplied.
Count 2
In respect of Count 2, the appellant was charged with trafficking in a large commercial quantity of cannabis from Adelaide to Perth between 1 October 2013 and 6 October 2013. On 3 October 2013, Mindis travelled from Adelaide to Perth by train, arriving on 5 October 2013. He flew back to Adelaide on 8 October 2013.
On 2 October 2013, Antonio called the appellant on Caterina’s landline. Antonio told the appellant that ‘he came’ and the appellant responded that he knew that (call 51). There was then the following conversation:
Appellant: what number
Antonio: twelve
Appellant: only
Antonio: yeah has to come back
Appellant: when
Antonio: tonight …
Appellant: when he goes when the kids leave you know what to do
The number 12 is consistent with the delivery of cannabis in pound units, and in a quantity similar to the substance the subject of Count 1, having regard to the appellant’s and Antonio’s expectation that more would be delivered to Caterina’s house.
On a search of Caterina’s Torrensville house on 15 November 2013, police located a cannabis head stripper and remnants of green vegetable matter in the bowl of the head stripper in a rear room. The bowl smelt of cannabis. There were cannabis remnants on the floor. They found two salad dryers or head strippers in a box in a rear room. They located a vacuum packaging system, plastic bags and green vegetable matter in a box in the spare room. A sunbeam vacuum packaging system was found in a blue vehicle parked in the driveway. There was also a small amount of green vegetable matter on the floor in the spare room. However, as we shall see, the prosecution case on Count 4 was that cannabis was packaged at Caterina’s home on 14 November 2013. On the prosecution case, therefore, the fragments may equally have been the remnants of cannabis prepared for dispatch at Caterina’s home on 13 and 14 November.
The evidence of what was found at Caterina’s house is nonetheless relevant on Count 3 in addition to any relevance it had by showing that the appellant was engaged in trafficking in cannabis in October and November 2013. It is relevant as to the identity of the substance discussed by Antonio and the appellant in call 51, because of the similarity between the arrangements made, and Mindis’ travel plans, on 2 and 3 October and the arrangements around his travel plans on 13 and 14 November. It is most improbable that such substantially similar arrangements were made by the same people for the packaging and transportation of similar quantities of two similar but different substances in October and November. That is the non-propensity use identified by the Judge, albeit by reference to the intercepted telephone calls in dot point [6] of paragraph [42], of her Honour’s reasons.
Later in the evening on 2 October 2013, Antonio telephoned the appellant again (call 52). There was discussion about whether another ‘four’ would arrive. They agreed that there would be no supply ‘if it’s not twenty’. The appellant asked, ‘those he brought now are dry’? Antonio replied that he hadn’t seen it yet, after which the sounds of unwrapping something could be heard. Antonio then said, ‘yeah like those I brought you’. In the course of the conversation the appellant told Antonio to ‘do those ones and tomorrow when we finish them we’ll see how many they are’ and ‘just do what ya gotta to’. The conversation supports the inference that the substance was cannabis and that the appellant was directing its packaging.
On 3 October 2013, Mindis asked the appellant over the telephone to pay $340 for a fare. The appellant agreed to do so. Later that day Mindis left for Perth by train. That evidence supports the inference that the appellant was coordinating the supply of substances to Perth with the aid of Mindis.
On 3 October at 3.18 pm, the appellant had a telephone conversation (call 55) with his mother about machines not working and about the purchase of a replacement machine for $300 from Master Butchers or Gaganis. During call 55, Antonio then spoke to the appellant on the phone. The appellant asked how many were in the bag and Antonio replied nineteen, with ‘three quarters’ left over. They discussed getting something from Master Butchers before the appellant encouraged Antonio to do his best or ‘just pull them out like I used to and steal them’. The appellant expressed frustration at not being able to do it himself. A little later the appellant and Caterina spoke again about the difficulty in finding the equipment for which they were searching (call 56).
Mindis arrived in Perth on 5 October 2013. He called Antonio at 12.26 pm (call 60) and reported that it was ‘All good, mate’. A minute later Antonio called the appellant (call 61) and relayed the message that it was all good. A little later Antonio called Mindis but passed the phone to the appellant (call 62). It follows that Antonio had travelled to the appellant’s home between calls 60 and 62. The appellant and Mindis discussed whether ‘more’ can be supplied and whether Mindis had been paid.
The conversations in which the appellant engaged are strong evidence of his participation in an arrangement by which dried vegetable matter would be packaged by Antonio and taken by Mindis’ travel to Perth. Accepting for now the admissibility of the conversation between Antonio and the appellant, and Mindis and Antonio, as evidence of the truth of the statements they made, the evidence supports an inference that Mindis successfully completed the delivery of 19 pounds of cannabis, in which the appellant had an interest, to Perth.
Again, the primary probative purpose of the appellant’s involvement in the supply of substances into Western Australia on other occasions was to add to the proof that the product supplied was cannabis as charged by Count 2.
Count 3
Count 3 charged trafficking a large commercial quantity of cannabis from Adelaide to Perth between 8 October 2013 and 16 October 2013. On 8 October 2013 Mindis returned to Adelaide by plane after travelling to Perth by train on 3 October 2013. On 10 October 2013, Mindis boarded the Indian Pacific train from Keswick and arrived in Perth on 12 October 2013, flying back to Adelaide on 15 October 2013.
On 9 October 2013, the appellant called Antonio. Antonio told him that Caterina was scared. The appellant asked whether that was because the ‘big one come last night?’ Antonio replied ‘yeah … seven’. He told the appellant that their mother didn’t like it in the yard for ‘too long’. That afternoon, Antonio spoke to Mindis. In the conversation Antonio said, ‘our friends said if you can come … past, either tonight after seven – after 6 o’clock … or tomorrow to … see him’. Mindis responded ‘Tell him tomorrow morning’. Later that evening the appellant and Antonio spoke again (call 66) and the appellant asked ‘How many are they’ and Antonio replied 28, and that there was 100 grams left over. The appellant asked ‘Did he say he comes tomorrow?’ to which Antonio responded ‘yeah, said he comes and to see us tomorrow morning’. The quantities discussed are consistent with the supply of cannabis in pound units in a similar quantity to the substances supplied as charged in the first two counts.
The evidence of the cannabis remnants and equipment found at Caterina’s home are relevant on this count in the same way I have explained in respect of Count 2.
On his arrival in Perth on 12 October 2013, Mindis telephoned Antonio and informed him ‘So far, so good’. Antonio told Mindis that ‘My friend said … to go past the shop … cuz they’ll have something for you’. Within two minutes Antonio called the appellant and said, ‘yeah just arrived’. At 1.36 pm, Mindis called Antonio and informed him ‘Yeah, it’s all good mate … tell our … our friend I need some more, more, more, more’.
Those conversations evidence, in a similar way to the evidence bearing directly on the trafficking charged in Count 2, the appellant’s participation in an arrangement to have Antonio package 28 pounds of cannabis which was successfully delivered by Mindis to Perth.
Again, the primary probative purpose of the evidence of other arrangements to traffic substances from Adelaide to Perth was to add to the proof that the substance was cannabis.
Other conduct in October
There was evidence of other trips made by Mindis between Adelaide and Perth later in October and early November, and of conversations between the appellant, Antonio and Mindis. The inference can be drawn from the intercepted conversations that the appellant organised the supply of substances from Adelaide to Perth, and the making of a payment by bank deposit. Mindis flew to Perth from Adelaide on 20 October 2013 and flew back on 23 October 2013, and repeated that trip on 27 October 2013, returning on 30 October 2013. Mindis left Adelaide by train on 31 October 2013, returning by plane on 6 November 2013. The evidence establishes a continuity between the arrangements made in October and those made in November but does not otherwise add to the evidence of the identity of the substances or shed any greater light on the appellant’s part in them.
Counts 4 and 5
Count 4 relates to a charge of trafficking of a large commercial quantity of cannabis between 12 November 2013 and 15 November 2013, and Count 5 is a charge of trafficking of a large commercial quantity of MDMA between the same dates. On 14 November 2013 cannabis and MDMA (in pill form) was seized after it was found in the luggage of Mindis at the Keswick Railway Station.
On 13 November 2013, the appellant spoke to Caterina and instructed her to ‘open the door’ (call 110).
Later that day, the appellant’s wife called him and said, ‘personally I’d get it refunded’ (call 111). The appellant asked ‘H-two-oh?’. A short time later Antonio called Mindis and asked him to see their ‘friend’ (call 112). The conversation supports an inference of the appellant’s involvement in the delivery to Caterina’s house of a relatively wet organic substance of poor quality, which it can be inferred was cannabis.
On 14 November 2013, Mindis arrived at the appellant’s Mile End home at around 10.30 am in a bronze four-wheel drive vehicle and then left at about 11.06 am. Within minutes the appellant called Carolyn and asked her to come home and to tell Caterina that she would return at about 12.30 pm.
Mindis then travelled from the appellant’s home to business premises trading as Pack & Send at Nailsworth, arriving there at 11.21 am, where he purchased flat packed cardboard boxes. After driving to his home at Tea Tree Gully, Mindis returned to the appellant’s home at 12.23 pm. Carolyn and Mindis spoke together on the street and placed the cardboard boxes into the back of a white Holden. They then entered the appellant’s home through a side entrance. Mindis left about 10 minutes later and travelled to the Keswick Railway Terminal where he purchased a train ticket for Perth before travelling to a street adjacent to the appellant’s home. Carolyn travelled to Caterina’s Torrensville address in the white Holden.
At 12.50 pm, the appellant called Caterina and told her that ‘the old man is coming there’ (call 114). At 12.52 pm, Mindis travelled to Caterina’s home where he stayed for a short time, leaving at 12.58 pm. At 1.16 pm, Carolyn left Caterina’s home and returned to her Mile End home. She later left again to go to the Castle Plaza shopping centre.
At about 2.12 pm, the appellant called Antonio and told him to go to Anna’s home (call 115). At about 2.16 pm, Antonio’s blue Holden Commodore drove from Caterina’s house to Anna’s house at Mile End.
Between 2.21 pm and 2.28 pm, Carolyn drove the white Holden Commodore from Mile End to Torrensville and entered Caterina’s home. At 2.30 pm Carolyn called Antonio and told him that she was on the way (call 116). At 2.32 pm, Carolyn left Catarina’s home at Mile End with a multicoloured bag and travelled to her own home at the corner of Claremont and Ballara Streets, Mile End, arriving at 2.37 pm. Between 2.40 pm and 2.45 pm Carolyn walked to Anna’s Mile End home along Ballara Street carrying a yellow bag. The prosecution alleged that she was carrying a vacuum sealing machine which she had taken from Caterina’s home.

For similar reasons, the appellant’s contention that only the statements made by Antonio before the supply of the cannabis the subjects of Count 2 and 3 could be relied on must be rejected. The Judge’s decision not to rely on the evidence of conversations after the supply was an error favourable to the appellant. In any event, calls 51 and 52 on 2 October 2013 pre-date Mindis’ travel to Perth on 3 October 2013. Antonio and the appellant discussed on 2 October 2013 how dry the substance was, made reference to waiting for a further quantity and to finishing whatever they were working on on the following day, 3 October 2013, when Mindis left from the Keswick Railway Terminal.
Equally, Mindis reporting to Antonio and the appellant that all was well on 5 October 2013, even if it be accepted that the cannabis had been supplied to Condo by then, is inextricably connected with that supply, as is Antonio’s report to the appellant on the same day. It is not mere narrative. The reporting of the fact of delivery is a step in securing payment for the drug, as shown by the intercepted conversation in which the appellant and Condo discuss how the payment will be delivered to Adelaide. Those conversations also establish the appellant’s culpable involvement in Count 3. I acknowledge that the appellant and Antonio did not specifically discuss the quantity that was successfully delivered, but once it is accepted that there was evidence that they were involved in the supply of the cannabis that Mindis took to Western Australia, their earlier conversation on 2 and 3 October 2013 in which Antonio spoke of 4 and 19 is admissible evidence from which it can be inferred that 19 pounds were supplied.
Similar reasoning applies to the evidence of the conversations in call 66 on 9 October 2013 with respect to Count 3, when Antonio referred to 28 pounds and to Mindis’ reporting that all was good on 12 October 2013.
The appellant accepts that the evidence of Anna’s involvement in the joint enterprise includes:
·call 119 in which Anna speaks to the appellant about what to do with the leftover pills;
·Antonio, Anna and Carolyn moving to and from Anna’s house on 14 November 2013;
·Anna’s DNA on a glove found at her house which had MDMA residue; and
·the presence at Anna’s house of a machine consistent with that used for packaging the substances found on Mindis on 14 November 2013.
That evidence clearly shows Anna’s involvement in the joint enterprise to traffic cannabis and MDMA. However, the appellant submits that it does not show that she was a party to agreement to traffic those substances into Western Australia. He contends therefore that her statements and conduct were not admissible to prove the appellant’s guilt on Count 5. However, there was ample evidence to show that Anna packaged MDMA for the purposes of trafficking it at the direction of the appellant. There was no reason to conclude that her purpose did not extend to trafficking it to customers wherever they might be found. Trafficking to Western Australia falls within the scope of that enterprise.
Unreasonable verdict
In submitting that the conversations recorded in the intercepts were not strongly probative of an admissible propensity, the appellant’s counsel subjected the conversations to a close forensic analysis in an attempt to demonstrate that each conversation was open to an innocent explanation, and therefore was not strongly probative. That approach must be rejected because the strength of circumstantial evidence lies in its combined force and not in individual strands. In evaluating circumstantial evidence for the purpose of determining whether it is strongly probative generally, and in the context of s 34P of the Evidence Act in particular, it must be viewed as a whole. As each item of circumstantial evidence is put in place, it strengthens the probative force of the other items of circumstantial evidence and the inference it supports is more clearly revealed. Moreover, the relevant question is whether the evidence that the appellant was in the ‘business’ of trafficking cannabis and/or methylamphetamine trafficking, is probative of the commission of the particular offences charged. The individual telephone conversations were admitted in proof of the intermediate fact that he was in that business. It serves no purpose to ask whether each item of evidence on which that intermediate fact was made is, in itself, strongly probative of any of the charged offences. The point can be illustrated by reference to several examples of the appellant’s submissions on this ground.
The appellant submitted that even though some references in the telephone conversations temporally connected to the commission of Count 1 might be consistent with cannabis trafficking, it was unsafe to so conclude because some apparently different substances were also discussed. That is so, but the discussions in calls 1 and 2 about the substance which was sent to Western Australia being wet and mouldy, and the decision to make up for the weight loss through drying, support a finding that they were discussing cannabis, even if other substances were mentioned. The evidence of later conversations also supports a conclusion that the appellant arranged to supply what was cannabis to Western Australia in the following year, for the reasons explained in [68] and [115] above.
In relation to the telephone conversation connected temporally to Count 3, the appellant complains that a reference in call 69 to ‘two little one, two ounces’ is not strongly supportive of a conclusion that the substance was cannabis because the phrase ‘little ones’ had been used apparently in reference to ecstasy tablets in other calls. However, the meaning of two little ones was explained by the conversations which followed, which showed that the amount of the substance trafficked was 19 pounds.
Under this ground, the appellant also complains about the use of the evidence of Ms Evangelou. I have dealt with that complaint in [23]-[27] above. The evidence was circumstantial evidence directly probative of the offending charged in each count because that offending was capable of generating the wealth for which there was no other apparent explanation.
On Count 1, the appellant submits that the evidence did not establish beyond reasonable doubt that the substance spoken of was cannabis. The appellant contends that the description of white mould suggested that the substance was not cannabis. That evidence did not detract from the totality of the evidence from which the identity of the substance as cannabis was established beyond reasonable doubt. Detective Hunt gave evidence that cannabis on mould generally is black fungus-looking substance. However, Detective Hunt said it can vary usually going from a darkish brown to a black depending on the stage and how much mould there was. True it is that the appellant and Condo mentioned a white mould in connection with the plant matter that had been supplied but what they meant by that expression is certainly not clear and the adjective ‘white’ seemed to have been used in the context of the conversation as differentiating one kind of mould from another. That cryptic reference does not detract from the weight of all of the evidence to which I have earlier referred. The appellant also contends that the discussion about the amount of money held back was inconsistent with the inference contended for by the prosecution that 35 pounds of cannabis had been supplied. I would reject that submission for reasons which are explained in [45] above.
On Count 2, the appellant contends that there was no persuasive evidence that the appellant had directed the packaging of a large commercial quantity of cannabis. The appellant contends that the appellant’s statement in call number 51 ‘you know what to do’ was not a direction. There is no merit in that literal approach to what the appellant said. It ignores the context of an ongoing operation which the appellant was coordinating. In that context, the statement ‘you know what to do’ can properly be understood as a direction to do what is expected and usually done. The appellant relies on the discussion amongst the appellant’s associates about finding a solution to the machine problem. Some elements of individual initiative by associates is not inconsistent with the appellant’s participation as the coordinator or director of the major elements of the enterprise. The appellant complains that there was no evidence of the delivery of the shipment. Whatever might have been contended at trial for the reasons which I have given in [73] to [74] above, the report on the delivery of the goods was admissible.
On Count 3, the appellant again focuses on an occasional statement, the exact meaning of which cannot be discerned from the guarded conversations of the appellant and his associates and on the conversational nature of some of the discussion to make the submission that the appellant was not directing the operation. Those submissions, too, fail to address the combined weight of the conversations viewed as a whole and the totality of the evidence.
On Count 5, the appellant contends that there was no reference by the appellant to ‘the little things’ or ‘the little ones’ which might have suggested that he was aware of and directing the packaging of MDMA. At least the references to ‘little things’ and ‘little ones’ were only after Mindis had left for Keswick. However, it is clear even without the use of those expressions prior to Mindis leaving that the appellant was talking about the packaging of MDMA pills. It was those pills which were found on Mindis and in particular there were two bags with quantities of pills in the one case the same as mentioned in the discussion with the appellant and in the other case very close to the amount that was mentioned.
The appellant’s contention that there was a dearth of evidence that the appellant had directed the packaging of the ecstasy for the purpose of trafficking the drugs to Western Australia for sale must be rejected. The evidence was in fact overwhelming.
Conclusion
I would dismiss the appeal.
KELLY P: I agree that the appeal should be dismissed for the reasons given by the Chief Justice.
DOYLE JA: I agree with the reasons of the Chief Justice and would dismiss the appeal.