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…