R v Catanzariti
[2021] SADC 11
•11 February 2021
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CATANZARITI
Criminal Trial by Judge Alone
[2021] SADC 11
Reasons for the Verdicts of the Honourable Justice S David
11 February 2021
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
The accused was charged with five counts of trafficking in a large commercial quantity of a controlled drug (cannabis and MDMA) - accused alleged to have directed the packaging of drugs or caused their transportation for sale in Western Australia - the prosecution case relied largely on intercepted telephone calls - no drugs seized for counts 1, 2 and 3 - drugs for counts 4 and 5 seized by police - evidence of unexplained wealth - evidence of other uncharged acts of drug trafficking - family members and associates of accused allegedly involved in the offending - operation of the co-conspirators rule.
Held: Accused guilty of counts 1 to 5.
Controlled Substances Act 1984 (SA) ss 4, 4(4), 4(5), 32(1) and 33R; Criminal Procedure Act 1921 (SA) s 100, referred to.
R v Catanzariti [2018] SADC 6; R v C [2018] SASCFC 125; Johnson v Miller (1937) 59 CLR 467; R v Pfitzner (1976) 15 SASR 171; H (1995) 83 A Crim R 402; R v Parisi [2014] SASCFC 57, considered.
R v CATANZARITI
[2021] SADC 11
Criminal Jurisdiction
Saverio Catanzariti (‘the accused’) is charged with five counts of the offence of Trafficking in a Large Commercial Quantity of a Controlled Drug, contrary to s 32(1) of the Controlled Substances Act 1984 (SA) (‘CSA’). He is charged on Information dated 12 May 2016 as follows:
First Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (section 32(1) of the CSA).
Particulars of Offence
Saverio Catanzariti, between the 1st day of November 2012 and the 20th day of November 2012, at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Second Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (ibid).
Particulars of Offence
Saverio Catanzariti, between the 1st day of October 2013 and the 6th day of October 2013, at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Third Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (ibid).
Particulars of Offence
Saverio Catanzariti, between the 8th day of October 2013 and the 16th day of October 2013, at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Fourth Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (ibid).
Particulars of Offence
Saverio Catanzariti, between the 12th day of November 2013 and the 15th day of November 2013 at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug.
Fifth Count
Statement of Offence
Trafficking in a Large Commercial Quantity of a Controlled Drug (ibid).
Particulars of Offence
Saverio Catanzariti, between the 12th day of November 2013 and the 15th day of November 2013 at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely 3,4-methylenedioxymethylamphetamine (‘MDMA’), knowing or being reckless as to the fact the substance was a controlled drug.
The accused pleaded not guilty to all of the charges and elected for trial without a jury. I now publish reasons for the verdicts I deliver.
Overview
The accused was alleged to have trafficked three shipments of cannabis, and a fourth shipment of which included both cannabis and MDMA to Western Australia, resulting in five separate counts, all of which constitute the basis of this matter. Count 1 relates to a shipment of 35 pounds of cannabis from South Australia to Western Australia in November 2012. Counts 2 and 3 relate to separate shipments of cannabis from South Australia to Western Australia in October 2013. Count 2 allegedly involved a shipment of 19 pounds of cannabis, and Count 3, a shipment of 28 pounds of cannabis. The drugs the subject of Counts 1, 2 and 3 were not seized by police. Count 4 relates to 13.3 kilograms (approximately 30 pounds) of cannabis and Count 5 relates to 20,079 tablets of MDMA. The drugs the subject of Counts 4 and 5 formed part of one shipment intended for Western Australia, and were seized by police on 14 November 2013. The seizure of these controlled drugs occurred shortly before Peter Mindis (‘PM’), the alleged courier of the drugs, boarded a train at Keswick Railway Station bound for Perth, Western Australia.
In respect of all Counts, the prosecution case was that the accused trafficked the relevant drugs by taking one or more steps in the process of sale, for the purpose of sale of the drug, and intending that a large commercial quantity be trafficked. The prosecution alleged that the accused directed the packaging of the drugs or caused the transportation of the drugs, or both, to Dominic Condo (‘DC’) in Western Australia. The accused also allegedly used associates PM and Leah Tilley (‘LT’) to courier the drugs from South Australia to Western Australia, and to courier monetary payment for the drugs from Western Australia to South Australia.
In January 2013, DC was arrested in Perth, Western Australia for drug and firearms offences. There was little direct contact between the accused and DC after the date of DC’s arrest. In April 2013, the accused was placed on electronically monitored home detention bail. From June 2013 to November 2013, the accused distanced himself from DC. While the accused was confined to his premises on home detention bail, he allegedly committed the offences that constitute the basis of this matter with the assistance of family members including his wife, Carolyn Catanzariti (‘CnC’), his sister, Anna Fulco (‘AF’), his brother, Antonio Catanzariti (‘AC’) and mother, Caterina Catanzariti (‘CaC’).
The prosecution case primarily relied on intercepted telephone conversations between the accused and others (‘party calls’), and between the accused and other participants in the offending in the absence of the accused (‘non-party calls’), as directly relevant to the charged offences, or, as relevant to show that the accused was in the business of trafficking controlled drugs or for other non-propensity purposes.
The prosecution also adduced evidence as to the accused and his wife’s financial position during the charged period to establish that there was a large amount of cash available to the accused from unidentified sources, and that he was in receipt of ‘unexplained wealth’.
In mid-November 2013, and in the days prior to the arrest of PM, the accused and his family and associates were placed under surveillance. There was evidence as to their movements as directly relevant to Counts 4 and 5. On the prosecution case, the cannabis (Count 4) was delivered to, and packaged at CaC’s Torrensville premises at the direction of the accused, and the MDMA (Count 5) was packaged at AF’s Mile End premises at the direction of the accused.
After the arrest of PM on 14 November 2013, police searched the various residential premises associated with the accused and his family and associates. The premises of AF at Mile End were searched, and a vacuum sealing machine, electronic scales and numerous press seal bags were seized from the premises, along with a latex glove on which MDMA was detected. A DNA profile extracted from the glove was more than 100 billion times more likely to have been obtained if AF was the source of the DNA rather than an unknown contributor. The premises of CaC and AC at Torrensville was searched by police. A vacuum sealing machine and bud stripper were seized from the home. A police officer also observed remnants of green vegetable matter in the spare room.
The prosecution also adduced evidence from Detective Hunt as to the methods of marketing, packaging and pricing of cannabis and MDMA in 2012 and 2013.
The accused did not give evidence nor call any evidence.
Procedural history
By way of background, these proceedings were the subject of an application for a permanent stay of proceedings for a failure of the prosecution to provide adequate particulars.[1] The District Court granted a stay of proceedings on Counts 1, 2 and 3 for want of particulars and on the basis the prosecution was doomed to fail. As to Counts 4 & 5, the Court ordered the provision of particulars. The Director of Public Prosecutions (‘DPP’) appealed against the decision. The Court of Criminal Appeal allowed the appeal.[2] Justice Vanstone set out a detailed chronology of the prosecution’s failure to provide particulars.[3] The proceedings were remitted to the District Court for trial.
[1] R v Catanzariti [2018] SADC 6.
[2] R v C [2018] SASCFC 125.
[3] R v C [2018] SASCFC 125 at [81].
On 5 July 2019, the DPP filed a written prosecution opening. On 1 May 2020, the prosecutor stated in an email that ‘... the Director confirms that the particulars of the offences alleged against the defendant are as set out in the written opening filed on 5 July 2019 and respectfully invites Her Honour to consider the opening before the commencement of the trial’.
The trial commenced on 4 May 2020 with a voir dire as to the admissibility of some of the intercepted telephone calls, the permissible use of the intercepted telephone calls, and whether some of the statements made during the telephone calls were admissible for a testimonial purpose pursuant to the co-conspirators rule. There was also a challenge as to the admissibility of the evidence of ‘unexplained wealth’. Evidentiary rulings were delivered on 25 June 2020.
At the commencement of the trial on 1 July 2020, the prosecutor confirmed that the prosecution relied upon the terms of the written prosecution opening filed in 2019, subject to the evidentiary rulings.
Particulars
Senior counsel for the accused submitted that the prosecution case for the five charged offences was particularised in the written prosecution opening as being that the ‘accused trafficked in the controlled drugs particularised for each Count by taking part in their sale to DC in WA’.[4] Senior counsel relied on several paragraphs in the written opening in support of that submission.[5] It was contended that in order for the accused to be convicted of the charges particularised in the Information dated 12 May 2016, and in the written prosecution opening dated 5 July 2019, the prosecution was required to prove for each offence, in addition to the general elements of the offence, that the controlled drug was received by DC; that the packaging or transportation of the drug was a step in the process of its sale to DC; and that the accused caused the drug to be packaged and/or transported from South Australia to Western Australia for the purpose of its sale to DC.
[4] Document entitled ‘Matters the prosecution is required to prove’ dated 8 July 2020 at [10].
[5] Written prosecution opening dated 5 July 2019 at paragraphs 1, 2, 3, 6, 10, 14, 21, 28 and 32.
The particulars assumed some importance because Senior Counsel contended that the evidence, and the inferences the prosecution sought to draw from that evidence, could only establish that DC was a partner or employee of the accused not a purchaser of the drugs. In support of the argument, Senior Counsel referred to the content of several intercepted telephone calls. Those calls were said to show that: the drugs were passing through DC for sale to other unknown purchasers;[6] the accused and DC were partners rather than seller and buyer;[7] and the accused’s one communication with DC after DC’s arrest in January 2013 reflected the relationship of an employer/employee presumably because he owed money to the accused as, at the time of DC’s arrest, the police had seized drugs.[8] Further, Senior Counsel submitted that the accused and DC never discussed the purchase price of any drugs suggesting that the drugs were not for sale to DC. It was submitted that the argument was applicable to all Counts because the nature of the relationship between the accused and DC as partners or employer/employee in the earlier months, characterised the nature of the relationship throughout the charged period.
[6] Call 1 (Exhibit P15A)– ‘he’ll take as many as you can get’;
[7] Call 1 (Exhibit P15A) – ‘Yeah the point is that we need to build our money then we can do more’ ... ‘Once we build the bank then we got no problem’. Calls 3-4 and discussions between the accused and DC about the impact of mouldy cannabis.
[8] Call 38 (Exhibit P15A).
General principles
Section 100 of the Criminal Procedure Act 1921 (SA) was in force at the time of the trial. It provides:
(1) An information charging an indictable offence must contain—
(a) a statement of the specific offence or offences that the accused person is charged with; and
(b) such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)Despite any rule of law or practice (but subject to the provisions of this Act), an information charging an indictable offence and laid in a court will not be open to objection in respect of its form or contents if it is framed in accordance with any requirements prescribed by the rules of that court.
At common law, the prosecution is required to provide the particulars of a charged offence for the purpose of giving sufficient information to an accused person as to the nature of the charges in order to provide for a fair trial. An accused person is entitled ‘to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge’.[9] Particulars are intended to ensure that ‘the forensic contest is directed to the same issues, and that the accused is treated fairly’.[10]
[9] Johnson v Miller (1937) 59 CLR 467 at 489.
[10] R v Pfitzner (1976) 15 SASR 171 at 192.
Before the commencement of the trial in this Court in July 2020, adequate particulars had been provided to the accused by the written prosecution opening, and by the prosecution having identified the intercepted telephone calls and evidence directly relevant to each count. The accused was on notice as to the acts alleged to have formed the basis of each charge.
Notwithstanding the protracted history of the prosecution providing adequate particulars, it does not follow that it was a material particular that the accused took part in the sale of drugs to DC as opposed to another person. This was not a case where the specification of the purchaser of the drugs, although not an element of the offence, was ‘material to the integrity of the process’.[11]
[11] H (1995) 83 A Crim R 402 at 411-412.
In any event, for the reasons which follow, I am satisfied that the evidence established that the accused took part in the sale of the drugs to DC in Western Australia, and that DC was the purchaser of the drugs. The evidence also revealed that DC was intending to, or had onsold at least some of the drugs to other purchasers, and that he paid the accused for the drugs, on at least some occasions, after he had obtained payment from other purchasers. However, that method of payment did not undermine the prosecution case that the accused took part in a sale of the drugs to DC. The manner or way in which DC funded his purchase of the drugs from the accused was immaterial. The accused’s dealings were with DC, directly or via an intermediary, and it was DC who paid the accused for the drugs, whether that was from money he had obtained from onselling the drugs or from past sales or otherwise. The evidence supported a finding that the accused took part in a sale to DC rather than other unknown persons.
Co-conspirators rule
Senior Counsel also submitted that statements made by the parties during the intercepted telephone calls, which the prosecution sought to adduce pursuant to the co-conspirator’s rule, were not admissible for a testimonial purpose as they were not words or conduct by other parties to the charged unlawful enterprise, and were not said or done in furtherance of the alleged common unlawful purpose. Senior Counsel submitted that the words or conduct (if taken to mean that alleged by the prosecution) were statements made in furtherance of a conspiracy to commit the offence of trafficking controlled drugs to an unknown third party, and not to DC or in furtherance of the charged offence. For the reasons outlined earlier, I do not accept the argument that the identity of the purchaser is a material particular which the prosecution need to prove.
As to the admissibility of the statements for a testimonial purpose, I make the following findings. As to the assertions made by DC during calls numbered 1, 2 and 4 relied upon for a testimonial use (and relevant to Count 1), I have previously ruled there was reasonable evidence of pre-concert between the accused and DC to commit Count 1 at the time of each challenged assertion. I am satisfied that the statements by DC were made in furtherance of a common purpose to commit Count 1. The statements were not simply a narrative of what had occurred in the past, but related to ongoing aspects of the transaction the subject of the charge, in that DC was discussing how he intended to pay the accused for the cannabis, and the accused and DC discussed how they intended to compensate others for the poor quality of the cannabis.
As to the assertions made by AC during calls numbered 51, 52 and 55 (relevant to Count 2) and calls 64, 65, 66 and 67 (relevant to Count 3), relied upon for a testimonial use, I have ruled there was reasonable evidence of pre-concert between the accused and AC to commit Count 2 at the time of each challenged assertion in calls 51, 52 and 55, and to commit Count 3 at the time of each challenged assertion in calls 64, 65, 66 and 67. I am satisfied that the statements by AC were made in furtherance of a common purpose to commit both Counts. The statements related to the delivery of cannabis to the Torrensville home of CaC, and the accused’s directions as to the packaging and the transportation of the cannabis for sale to DC in Western Australia, and were made in furtherance of Counts 2 and 3.
As to the assertions made by CaC in the call numbered 57 made on 3 October 2013 (relevant to Count 2), I have ruled that there was reasonable evidence of pre-concert between the accused and his mother to commit Count 2 at the time of the challenged assertion. I am satisfied that the statement made by CaC was made in furtherance of a common purpose to commit Count 2. The statement related to the packaging of cannabis by using a vacuum sealing machine. As to call 125 made on 15 November 2013 (relevant to Count 4), I have ruled there was reasonable evidence of pre-concert between the accused and CaC to commit Count 4 at the time of the assertion. The statement related to CaC telling the accused that she was ‘cleaning the house’ (as she was directed to do in an earlier call).[12]
[12] Call 123.
As to the assertions made by AF, in call numbered 119 made on 14 November 2013 (relevant to Count 5), I have ruled there was reasonable evidence of pre-concert between the accused and his sister to commit Count 5 at the time of the challenged assertion. The statement related to CnC discussing the packaging of the MDMA pills and receiving directions from the accused.
Legal elements of the offence
The offence of Trafficking in a Large Commercial Quantity of a Controlled Drug contains five elements, each of which the prosecution must prove beyond reasonable doubt. They are as follows:
First, the substance is a controlled drug. In this case, the substance in respect of Counts 1 to 4 was cannabis, and in respect of Count 5 was MDMA. There was no dispute that the substance that is the subject of Count 4 was cannabis, and the substance that is the subject of Count 5 was MDMA, those drugs having been seized by police on 14 November 2013. Nor was there any dispute that cannabis and MDMA are controlled drugs for the purposes of the CSA. As to Counts 1, 2 and 3, it was in dispute that the substance that was the subject of these charges was cannabis.
Second, the accused knew that the substance was a controlled drug or an illegal drug. The prosecution does not have to prove the accused knew the precise nature of the drug.
Third, the accused trafficked the drug. To ‘traffic’ in a controlled drug means to sell the drug; or have possession of the drug intending to sell it; or to take part in the process of the sale of the drug.[13] A person takes part in the process of sale of a controlled drug if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale of the drug.[14] A step in the process of sale of a controlled drug includes causing or directing another person to package or transport a controlled drug when done for the purpose of sale of the drug.[15]
[13] Section 4, Controlled Substances Act 1984.
[14] Section 4(4), Controlled Substances Act 1984.
[15] Section 4(5), Controlled Substances Act 1984.
Fourth, there was a large commercial quantity of the controlled drug. A large commercial quantity of cannabis is not less than 2 kilograms of pure cannabis or not less than 12.5 kilograms in a mixed substance containing cannabis. A large commercial quantity of MDMA is not less than 750 grams of pure MDMA or not less than one kilogram of a mixed substance containing MDMA.
Fifth, the accused intended to traffic in a large commercial quantity of the controlled drug.[16] It is necessary for the prosecution to prove that the accused intended to take part in the process of selling pure cannabis that in fact weighs not less than 2 kilograms, or 12.5 kilograms in a mixed substance containing cannabis (Counts 1 to 4), and not less than 750 grams of pure MDMA or one kilogram in a mixed substance containing MDMA (Count 5). However, it is not necessary for the prosecution to prove that the accused knew or was aware that such amounts of cannabis and MDMA are defined in law as a large commercial quantity.
[16] R v Parisi [2014] SASCFC 57 at [36].
In respect of Counts 1, 2 and 3, the statutory alternative and lesser offences of Trafficking in a Commercial Quantity of a Controlled Drug, or Trafficking in a Controlled Drug were available pursuant to s 33R of the CSA. This would arise if the prosecution proved the first three elements of the offence but not the fourth or fifth elements of the offence.
Standard legal directions
I apply the following legal principles in reaching my verdicts. The accused is presumed innocent unless and until his guilt has been proved beyond reasonable doubt. The burden of proving the charge lies wholly upon the prosecution. The accused is not obliged to prove anything. Nothing short of proof beyond reasonable doubt will suffice. It is not sufficient for the prosecution to show a suspicion of guilt or to show that the accused is probably guilty. Before the accused is convicted of the charged offence under consideration, I must be satisfied that the prosecution has proved beyond reasonable doubt each element of the offence. If I am satisfied that there is an explanation for the evidence consistent with the innocence of the accused, or I am unsure where the truth lies, then I must find the accused not guilty. I am required to consider each Count separately upon the evidence relative to that Count. If I use the terms 'proved' or 'established', or a similar expression relating to proof, then I shall always mean, proof beyond reasonable doubt. That is the standard to be applied.
In this trial, the accused elected not to give evidence. The accused’s silence cannot be used against him, nor can it be used as an admission of guilt. The accused’s silence cannot be used to fill any gaps in the prosecution evidence, nor does his silence make the prosecution evidence stronger or more persuasive. To use the accused's silence against him would deprive him of his right to remain silent. It is for the prosecution to prove beyond reasonable doubt its case on each charged offence.
There was expert evidence adduced from Ms Christina Evangelou as to the financial position of the accused and his wife. There was evidence from Detective Sergeant Hunt as to the methods of marketing, packaging and pricing of cannabis and MDMA in 2012 and 2013. Sergeant David Veldhoen also gave expert evidence on the topic of forensic tool mark examination. There was no dispute as to the qualifications or expertise of any of those witnesses. Rather, the dispute lay with the inferences the prosecution sought to draw from the evidence. The usual rule is that a witness can only give evidence of facts and is not permitted to express any opinions or conclusions drawn from those facts. One exception to that rule is that a properly qualified expert can express an opinion on matters within his or her expertise. In assessing expert evidence, it is for the trier of fact to decide what evidence to accept and the weight to be placed upon the accepted evidence. As with any witness, the expert evidence can be accepted or rejected, and the evidence is not to be blindly adopted simply because the witness is an expert in the relevant field.
The prosecution case against the accused is circumstantial in nature. There are two steps in approaching a circumstantial evidence case: first, to consider the facts upon which the prosecution relied and decide what facts are established by the evidence; and second, to consider what inference or inferences can be drawn from the established facts. The latter step requires a consideration of the combined strength of the facts established by the evidence. There can only be a guilty verdict on a charge if the circumstances, viewed in their entirety, exclude any reasonable explanation consistent with the accused’s innocence. In other words, before an accused person can be found guilty of any offence based upon circumstantial evidence, the accused's guilt must be the only rational inference to be drawn from the facts or circumstances I accept are established on the evidence.
Each charge must be considered separately. It is impermissible to reason that because the accused is guilty of one Count, he is necessarily guilty of another Count. The evidence relevant to each Count, and the case against the accused on each Count must be considered quite separately. The charges do not necessarily rise and fall together although some of the evidence is cross-admissible and relevant on all Counts, as discussed in the earlier evidentiary rulings.
Discreditable conduct
Intercepted telephone calls relevant to Count 1
As to the telephone calls numbered 1 to 23 (referred to by the prosecution as the first three chapters) each of the calls numbered 1 to 7, 17 to 21 and 23, viewed individually and in the context of the other calls in the first three chapters, was admissible to prove that the accused had a propensity to engage in the ongoing business of trafficking controlled drugs in proof of the first count. However, the intercepted telephone calls numbered 1 to 23 were inadmissible in proof of Counts 2 to 5, and the latter intercepted calls (numbered 24 to 127) were inadmissible for a propensity purpose in respect of Count 1.[17]
[17] Ruling dated 25 June 2020.
I am satisfied that each of the calls in the first three chapters, 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.
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
In respect of the intercepted telephone calls numbered 24 to 127 (referred to by the prosecution as chapters 4 to 9), 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.[18]
·The payments of money by others for uncharged drug transactions.[19]
·The movement and activities of PM and DC in respect of uncharged drug transactions.[20]
[18] Calls 28, 30, 36,37, 39 (Exhibit P15A).
[19] Calls 32-35, 38, 69, 85-89 (Exhibit P15A).
[20] Calls 43-48, 71-77, 95-100 (Exhibit P15A).
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.
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.
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.
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.
Unexplained wealth
Ms Christina Evangelou, a Senior Forensic Accountant employed by SAPOL, gave evidence as to the financial position of the accused and his wife during the charged period.[21] Ms Evangelou’s duties involved carrying out financial investigations and analyses of financial records, including accounting and banking records.[22] There was no dispute as to Ms Evangelou’s qualifications, experience and expertise.[23]
[21] Transcript 523 – 585.
[22] Transcript 523.
[23] Transcript 523-524; P35.
Ms Evangelou analysed the bank accounts and sources of funds available to the accused and his wife over a seven-year period, however, the admissibility of the evidence was limited to a 13-month period from 1 November 2012 to 30 November 2013, except to the extent that the earlier records and analysis explained her methodology and conclusions during the charged period.[24]
[24] Transcript 525; Ruling dated 25 June 2020.
Ms Evangelou created two schedules: the first schedule related to the documents she ultimately relied upon for her analysis;[25] and the second schedule related to documents which she reviewed but did not rely upon for her analysis.[26] For the purpose of her analysis, Ms Evangelou was told that the accused and CnC were married, which was relevant when considering the sources and uses of funds available between spouses.[27] In this instance, Ms Evangelou said that there was co-mingling of funds, including transfers between the accused and CnC and purchases on behalf of one another.[28] For this reason, Ms Evangelou conducted a joint financial analysis.[29] Ms Evangelou also proceeded on the basis that there were three dependant daughters.[30]
[25] Transcript 526; Exhibit P36A.
[26] Transcript 527; Exhibit P36B.
[27] Transcript 527-528.
[28] Transcript 528.
[29] Transcript 528.
[30] Transcript 528.
Ms Evangelou relied upon the following documents: bank accounts held in the name of CnC;[31] bank accounts held jointly in the names of both Saverio Catanzariti and CnC;[32] and an account held in the name of ‘Sam F Catanzariti’.[33] She was provided with bank statements for each of those accounts for a seven-year period.[34] Ms Evangelou also relied upon bank accounts held in the names of the accused’s three dependant children.[35] CnC was an authorised signatory on each of the children’s accounts.[36] Ms Evangelou did not include those funds in her analysis as she did not have any evidence to suggest that they were being used by the accused or CnC individually.[37] Therefore, Ms Evangelou only used them to cross-reference transfers between accounts.[38]
[31] Transcript 528; Exhibit P36A.
[32] Transcript 528; Exhibit P36A.
[33] Transcript 529.
[34] Transcript 529.
[35] Transcript 529; P36A.
[36] Transcript 529; P36A (item 199).
[37] Transcript 529.
[38] Transcript 529.
Ms Evangelou also took into account three betting accounts: two with TattsBet Limited in the name of ‘Sam Catanzariti’; and a Sportsbet account held in the name of CnC.[39] Ms Evangelou explained that client betting accounts operate in a similar manner to bank accounts, in that funds can be deposited into, and withdrawn from the account.[40] For this reason, Ms Evangelou approached the betting accounts in the same manner as she would a bank account.[41] Ms Evangelou was also provided with a number of prosecution witness statements for a context in which to undertake her analysis.[42]
[39] Transcript 529-530; P36A.
[40] Transcript 530-531.
[41] Transcript 531.
[42] Transcript 531; P36A.
As to Ms Evangelou’s methodology, she made a number of assumptions for the purpose of her analysis.[43] Ms Evangelou said she adopted a conservative approach in that she would not make an assumption if she did not have documentary evidence in support of it.[44]
[43] Transcript 533.
[44] Transcript 533.
Ms Evangelou used a personal finance management program to: record deposits and withdrawals electronically; allocate categories to transactions; and to generate various reports and graphs.[45] Ms Evangelou categorised documented deposits and withdrawals based on their nature and descriptions.[46]
[45] Transcript 534.
[46] Transcript 535-536.
Ms Evangelou said that there was no evidence of any salary or regular wage received by either the accused or CnC at any stage throughout the charged period.[47] There was no evidence of the accused or his wife having received any share dividends or any other income from assets or investments.[48] There were government benefits received by the household totalling $59,251.[49] During the charged period there was a total amount of $2,175.18 spent on groceries at supermarkets and food outlets.[50] If the Catanzariti household spent more than $2,000 on groceries over the year, they must have paid cash for the groceries because such expenditure was not documented on any of the bank statements available to Ms Evangelou.[51] Ms Evangelou said there were some months when there were no withdrawals from the bank accounts for supermarket expenditure.[52] She explained that if the accused or his wife made additional purchases in cash, then such expenditure would increase the amount of cash inflow from unidentified sources.[53]
[47] Transcript 539-540.
[48] Transcript 540.
[49] Transcript 540.
[50] Transcript 561.
[51] Transcript 562.
[52] Transcript 561.
[53] Transcript 561.
Ms Evangelou said that there was a large inflow of cash and expenditure on horseracing activities including betting.[54] There was an overall net loss through horse racing activity totalling $30,845 over the charged period.[55] Ms Evangelou agreed that she assumed that the deposits made from ‘winnings’ were legitimate based on what was recorded in the description of the transaction.[56]
[54] Transcript 562; Exhibit P37.
[55] Transcript 549.
[56] Transcript 543.
Ms Evangelou created a full list of items which she considered were cash or non-bank account transactions.[57] Ms Evangelou described these items as a ‘wallet’ which allowed her to calculate transactions made outside of the bank account.[58] For example, when cash was withdrawn from a bank account, she noted the amount in the wallet and when a cash deposit was made, she assumed it had come from cash available in the wallet.[59] This enabled her to identify the source or use of cash.[60] In that way, Ms Evangelou was able to determine the minimum amount of additional funds available to the accused and CnC outside of their bank accounts.[61] Ms Evangelou said she took a conservative approach by assuming that any cash withdrawn was available for the entire period.[62] She also only included transactions for which there was documentation or receipts.[63]
[57] Transcript 549
[58] Transcript 550.
[59] Transcript 550.
[60] Transcript 550.
[61] Transcript 550.
[62] Transcript 552.
[63] Transcript 552.
As to her conclusions, Ms Evangelou said that the total household funds available or inflow obtained by the accused and CnC during the 13-month period from 1 November 2012 to 30 November 2013 was $480,070.[64] Of that total, there was a minimum of $60,856 cash obtained from unidentified sources.[65] There were deposits into accounts where the source was not identified or documented, in the amount of $20,841.[66]
[64] Transcript 539 and 562.
[65] Transcript 539 and 562.
[66] Transcript 539.
In cross-examination, Ms Evangelou agreed that approximately $60,000.00 cash available from unidentified sources could have been cash that either the accused or CnC obtained from another source.[67] Ms Evangelou also agreed that she had assumed that the accused and CnC had zero cash at the beginning of the 13-month period based on her calculations of the preceding period that there were no funds available on 1 November 2012.[68] Ms Evangelou agreed that she also assumed that the accused and CnC had zero cash holdings at the beginning of the seven-year period.[69] She said that she made this assumption because one of the bank accounts was overdrawn by $2,106.66.[70] Ms Evangelou agreed that if the accused and CnC had cash in hand at the start of the seven-year period, that would have had a flow-on effect through the relevant 13-month period.[71]
[67] Transcript 565.
[68] Transcript 565-566.
[69] Transcript 566.
[70] Transcript 566.
[71] Transcript 566.
In reaching her conclusions, Ms Evangelou agreed that she assumed that the accused and CnC only held those bank accounts for which she was provided statements.[72] However, she said that she was aware of a Westpac prepaid Visa account for which she was not provided any details.[73] Ms Evangelou said that she was unable to identify the balance of the account because prepaid Visa cards generally do not have statements.[74] Ms Evangelou was not provided with any other information about the card or who may have deposited funds into the Visa account.[75] Ms Evangelou agreed that if there was another bank account or betting account that she did not know about, it would change her calculations.[76]
[72] Transcript 567.
[73] Transcript 567.
[74] Transcript 567.
[75] Transcript 568.
[76] Transcript 569.
As to the betting accounts, Ms Evangelou agreed that TAB accounts included a facility to make telephone bets in 2012 and 2013.[77] She said Tattsbet did not keep records of who made deposits into their accounts at the time.[78] Ms Evangelou assumed that the accused deposited cash into his own account because there were multiple cash deposits on the same day, typically after the betting account reached zero.[79] Therefore, it appeared that the account was being topped up by whoever was placing the bets in order to continue gaming on the day.[80] Ms Evangelou agreed that it was possible the accused could have pooled funds with other people, and then placed those funds into his Tattsbet account, which would alter her calculations as to cash available to the accused.[81]
[77] Transcript 570.
[78] Transcript 570.
[79] Transcript 570-571.
[80] Transcript 570-571.
[81] Transcript 572-573.
Ms Evangelou agreed that she was not advised whether the accused or CnC were directors or shareholders of any company. However, she said she conducted an ABN search and identified that the accused had an ABN for a sole trader business.[82] Ms Evangelou also agreed that she was not advised whether the accused or CnC were the beneficiaries of any trusts.[83] She said their tax records showed a link to a partnership, but not to any trusts.[84] Ms Evangelou agreed that she was not advised whether the accused or CnC had received any gifts of money from family or friends during the seven-year period.[85] She agreed that any gifts of money would affect her calculations.[86] She was not aware that the accused had stated in a phone call on 29 December 2012 that he borrowed money from his godmother.[87] Ms Evangelou said that those funds would have been taken into account in her calculations if they were deposited into a bank account.[88]
[82] Transcript 573.
[83] Transcript 573.
[84] Transcript 573.
[85] Transcript 573.
[86] Transcript 573-574.
[87] Transcript 574.
[88] Transcript 574.
Ms Evangelou said that after reviewing the taxation records of the accused and CnC, she determined that no assets had been declared as having been sold.[89] There was also no record of any real property or vehicle sales by the accused or his wife.[90] Ms Evangelou agreed that she would not expect to find any records of the sale of antique furniture or jewellery if sold for cash on Gumtree.[91]
[89] Transcript 574.
[90] Transcript 574.
[91] Transcript 574-575.
As to the unidentified deposits in “CE4” at line 10, Ms Evangelou said she knew the internet transfer related to the purchase of a horse.[92] Ms Evangelou said that she was familiar with the practice of persons owning trotting horses in a syndicate, whereby people own a share of a horse as opposed to owing one hundred percent of the horse.[93] She agreed that shares in a horse can be reflected in official records or it can be in the name of one person who has an informal arrangement with other people.[94] Ms Evangelou agreed it was possible that some of the unidentified deposits relate to people providing the accused with funds to purchase a part interest in a horse.[95]
[92] Transcript 575.
[93] Transcript 575.
[94] Transcript 575.
[95] Transcript 576.
In re-examination, Ms Evangelou described the accused and CnC’s financial records as ‘extensive’.[96] She said that she had reviewed over 2,500 individual documents that were seized, including bills with handwritten notations with references to bank accounts.[97] Ms Evangelou said there was no material which suggested the existence of another bank account for which she had no statements.[98] Ms Evangelou said that she would typically see trust moneys on an individual’s tax return, and there was no such evidence that either the accused or CnC were in receipt of funds as a beneficiary of a trust.[99]
[96] Transcript 583.
[97] Transcript 583.
[98] Transcript 582-583.
[99] Transcript 583-584.
On the basis of Ms Evangelou’s evidence, I am satisfied that the accused had at least $60,000 cash from unidentified sources during the charged period of the offending. I make that finding for the following reasons:
First, I am satisfied that the methodology used by Ms Evangelou was sound. In reaching that conclusion, I have taken into account Senior Counsel’s submissions that Ms Evangelou failed to have regard to some matters which may have affected her calculations, such as cash that the accused and his wife may have had at the beginning of the relevant period. Ms Evangelou provided a rationale for not doing so, namely: there was no evidence of any cash being held by the accused and his wife; their savings account was $2,000 overdrawn; and there was an outstanding balance on the residential mortgage. I accept Ms Evangelou’s evidence that those matters taken together suggested there was no cash held by the accused and CnC. As to the pre-paid Visa card, Ms Evangelou gave evidence that there was no reference in the extensive financial material to any documented transactions relevant to the card. Nor was there any reference in the financial materials to any other bank accounts held by the accused or his wife or any trusts of which they were a beneficiary. As to an informal arrangement with others for the accused to place bets on their behalf, it is notable that there was no mention by any party during the intercepted telephone calls as to any such arrangement. As to the suggestion that the accused and his wife may have received cash for items sold on Gumtree, again there is no reference to any such sales in the intercepted telephone calls. For those reasons, I am satisfied that Ms Evangelou’s conclusions are not undermined by the matters referred to by Senior Counsel.
Second, the assumptions made by Ms Evangelou during her analysis were conservative. She only relied on documented cash expenditure or deposits rather than inferring any spending patterns, for example, expenditure on horse training or groceries to feed a family of five.
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.
Prosecution evidence
I turn to the prosecution evidence directly relevant to each count. The evidence largely consisted of intercepted telephone calls. The identity of the alleged callers, CaC, AF and LT were in dispute. The identity of the other callers were agreed by the parties.
Count 1
As to Count 1, the prosecution alleged that the accused took part in the process of sale of a large commercial quantity of cannabis between 1 November 2012 and 20 November 2012. The accused allegedly took a step in the process of sale of 35 pounds of cannabis by causing its transportation for sale to DC in Western Australia. The prosecution alleged it was successfully delivered. The police did not seize the cannabis and the prosecution case largely relied on intercepted telephone calls.
Intercepted telephone calls
On 12 November 2012, the accused called DC.[100] The prosecution alleged that it was during this telephone call that the accused and DC discussed the accused having caused 35 pounds of cannabis to be transported to DC in Western Australia for sale. It is necessary to produce the complete transcript of the telephone call. There was no dispute that during this call, the accused is MALE 1 and DC is MALE 2. In the transcripts of all intercepted telephone calls, the italicised parts of the conversation are spoken in Italian.
[100] Transcript 429; Call 1 (Exhibit P15A); P2A.
Call 1 (No. 1144)
(phone rings)
MALE1: Hey,
MALE2: Hey what are you doing?
MALE1: Didn’t you have this number?
MALE2: I gave, I have, you gave me a number but said it was not this number
MALE1:Yeah nah that was her number I gave her a phone for you to keep in contact with her.
MALE2: Ohh she gave me both of them,
MALE1: Yeah one of, one of, yeah she gave you two phones didn’t she.
MALE2: Yeah
MALE1: Yeah, one, the other phone I am going to text you on it
MALE2: Ah okay
MALE1:the one you have ben texting me on throw it away today and I’m going to throw mine away.
MALE2: Yeah I’m going to do it today, yeah today yeah
MALE1: Alright?
MALE2: yeah
MALE1: What’s going on,
MALE2: Nothing. Is she back there?
MALE1: Yeah,
MALE2: Alright good,
MALE1: Didn’t I tell you to wrap those things for me.
MALE2: Oh mate you know why I was in a hurry,
MALE1: And you know why,
MALE2: Why
MALE1: She always touches mate, I keep on telling you.
MALE2: I make sure I do it next time
MALE1: anyway
MALE2:I was just in a hurry and I was waiting for somebody and this and that, I counted all that so it was all there.
MALE1: Well there was 300 missing but doesn’t matter, don’t worry about it
MALE2: I gave her 500,
MALE1: The 500 you gave her she reckons she might have put it back in the phones that …,
MALE2:No it wasn’t in that fucking bag why would she put it in the bag she that was giving to someone else.
MALE1: I got no idea mate, if it wasn’t that she was so good I would tell her to get fucked.
MALE2: Yeah I know,
MALE1: you know
MALE2: yeah I know
MALE1: Anyway not this week but next week
MALE2: yep
MALE1: I’m going to send you maybe forty or fifty and that’s it,
MALE2:Okay. Yeah cos this one guy, um, yeah he’s um, he is all good, fucken he reckons he will take as many as you can.
MALE1: He’s what.
MALE2:This other guy I got I used to see him before and I went and caught up with him
MALE1: yeah
MALE2: and he said he will take as many as you can get.
MALE1: Did he like them, there were beautiful hey.
MALE2: Yeah mate he reckons there top notch,
MALE1: Yeah of cause they are.
MALE2: yeah
MALE1: Now.
MALE2: What about the other ones the fucken the eye,
MALE1:I got ahh, I reckon I got dicked by that idiot that came here and sat with us that day
MALE2: yeah
MALE1: You remember what he said I will come see you tomorrow
MALE2: Yeah
MALE1:and we will organise and then he disappeared, I haven’t seen him since that day
MALE2: yeah
MALE1: he doesn’t answer his phone
MALE2: yeah
MALE1: even those little things that I send you
MALE2: yeah
MALE1:Now they reckon that there is no more there’s no more, they have finished, they’re gonna close shop I don’t know maybe there is some problem, I got no idea
MALE2: Maybe something happen,
MALE1: I don’t know. I’ve been paying them.
MALE2: They’re not as good one, they’re not as good these ones here.
MALE1: There is another one that has just come in.
MALE2: Yeah,
MALE1: umm tomorrow the small guy is coming
MALE2: yeah
MALE1:is coming he wants me to take 50,000 of them but fucken hell I want to test them before I take them.
MALE2: Yeah and well, get some off him for the money he owes me.
MALE1: Yeah the fifty,
MALE2: Yeah,
MALE1: yeah well he want’s work that out with you
MALE2: yeah
MALE1:he wants to get them off the little one off the young bloke. They’re not his he gets them on credit.
MALE2: I don’t know, but fucken they are moving a bit slow at the moment very slow,
MALE1: Yeah don’t worry about it I’d rather not do them,
MALE2:Yeah its not, its not, its not really worth it, yeah but those other ones are not really I’m just doing them something as I need to do something but there not really worth it for me either.
MALE1:Nah they’re not are they, You think about it I gotta, I got to risk to make $1000 I gotta risk nine.
MALE2: its fucken fucked
MALE1: Any …… you know the little one’s that I sent you have you done them.
MALE2: Which ones,
MALE1: the broken ones,
MALE2: Nah I haven’t done em yet
MALE1: Ah okay
MALE2: I will wait to the other ones are finished then I will do em.
MALE1: What did you think of the white,
MALE2: That one
MALE1: yeah
MALE2:nah I don’t want, that wet one is no good man. It’s alright but I can’t do anything with that here.
MALE1:yeah, but what I am saying with those ones did you fix them up with the white did you join them.
MALE2: Yeah I fixed it,
MALE1: as long as there fixed
MALE2: Yeah nah there fixed,
MALE1: When you get back from your holiday
MALE2: yeah
MALE1: I want you to get all the money you got together and I am saving all my money
MALE2: yeah
MALE1: and I am going to go and I’m going to buy cash up
MALE2: alright
MALE1: the eye
MALE2: good that’s what we need,
MALE1: Yeah fuck if we can do one every month and one of green a month
MALE2: Yeah
MALE1: that’s all we need and that’s it.
MALE2: yeah
MALE1: We don’t need to go do this for everyone fucken else.
MALE2: These other little ones are alright but there you know,
MALE1: If I can get half the gear from the nose and half the gear from the eye
MALE2: yeah
MALE1: every month and that’s alright that’s enough for us.
MALE2: Nah I need more than that,
MALE1:Yeah the point is that we when need to build our money and then we can do more
MALE2: yeah that’s it
MALE1: you have to remember Dom that logistically it’s too far away.
MALE2: Yeah
MALE1: I have to get there to send it, bring it here from here, sent it there
MALE2: Someone can do it
MALE1: nah. You got some stuff.
MALE2: I got some stuff to can be made or done here.
MALE1: yeah
MALE2: you know there’s too many people involved,
MALE1: Ohh, Ok,
MALE2: Fucken
MALE1: What happened to those pills you were going to send me to test.
MALE2:Yeah I got a few of them but fucken I can’t get hold of the guy that fucken, I have been trying to get a hold of him for a week and a half now I can’t get a hold of him for some reason.
MALE1: don’t worry about it’s coming to Christmas don’t worry about it.
MALE2:Anyway those books there fucken just send as many as you can cause this guy will take em.
MALE1:It’s getting hard to collect them, the only reason I got those coming is cause I got one bloke that all he makes he gives it to me.
MALE2: Oh Good,
MALE1:The problem is if you only send 80 and I still owe him a little more and then I gotta…
MALE2: Well next week I will have some more.
MALE1: Well how am I going to get it do you understand
MALE2: yeah
MALE1: that’s my problem I can’t afford to send her there every time just to pick up.
MALE2: Yeah Well,
MALE1: Can you send any with the old boy tomorrow night.
MALE2:umm yeah maybe if I go, I go see, I go see tomorrow night and see what um, I mean tomorrow night and I will see. That guy told me about Wednesday or Thursday but the other guy.
MALE1:Did you give em all to him? Did you ask (unintelligible), did you give them all to him
MALE2: No half half
MALE1: Oh Ok,
MALE2: One took 15 the other took 20
MALE1: Alright,
MALE2: yep
MALE1:…………. I don’t want to do any more credit it’s fucking scaring me. I just worked it all out, I got it all written down now and it’s fucking scary mate.
MALE2: Ahh just relax it’s all here.
MALE1:Yeah but that’s not the point if I don’t pay the others then they wont get anymore
MALE2: yeah
MALE1: I was lucky I got a bit of credit / credentials from them.
MALE2: Yeah
MALE1: Once we build the bank then we got no problem.
MALE2: yeah,
MALE1:I want to get a four wheel drive, I want to fix it up and I will send them in the car.
MALE2: yeah that was what she said she was gonna come.
MALE1: One time her the four wheel drive I will send it next week
MALE2: Yep
MALE1: I will find someone to come with her.
MALE2: Yeah ok, alright umm, I’ll umm
MALE1: So you don’t want anymore of those little ones,
MALE2: Not if they are those ones you just sent
MALE1: okay
MALE2:because those ones are not as good as the yellow, the yellow are good, but I need to change you know a little bit of a change.
MALE1:Alright, I will try and get the other ones from Sydney, go on the internet and tell me which ones are hearts are they any good,
MALE2:I don’t know I will have a look, but there is all different type ones just make sure you have someone there to try them first and then
MALE1: Nah I haven’t got anyone here.
MALE2: I have to go I am running out of money I have to go.
MALE1: This phone here is just to ring on alright
MALE2: okay
MALE1: I will text you my number on the other one.
MALE2: alright see ya
MALE1: So when you go home put it on.
MALE2: I will Alright bye
MALE1: ciao
(call terminated)
On the prosecution case, the accused and DC were discussing a recent shipment of 35 pounds of cannabis which the accused caused to be transported for sale to DC in Western Australia. In support of the inference that the accused and DC were speaking of cannabis, the prosecution relied on the use of the terms ‘green’ and ‘books’, as distinguished from the term ‘pills’ when discussing another substance or item. Detective Sergeant Hunt gave evidence that the term ‘green’ is often used to refer to cannabis.[101]
[101] Transcript 509.
The prosecution also relied on the reference to mobile telephones that the accused said he was intending to ‘throw away’ as indicia of a person trading in drugs. Detective Sergeant Hunt gave evidence that disposable mobile telephones or ‘burner’ telephones, are commonly used by those engaged in the illicit drug trade to avoid police detection.[102]
[102] Transcript 513.
In call number 1, there was also an instruction by the accused to DC to ‘wrap the things’ to be sent by DC back to the accused. On the prosecution case, that is a reference to cash paid for the cannabis the subject of the charge.[103] According to Detective Sergeant Hunt, cannabis is sold at a higher price in Western Australia than in South Australia, and there is a profit of about $1,000 per pound to be made by trafficking cannabis from South Australia for sale in Western Australia.[104]
[103] Transcript 619-620.
[104] Transcript 506.
On 16 November 2012, the accused telephoned DC.[105] There was no dispute that during this call the accused is MALE 1 and DC is MALE 2. They had the following exchange:
[105] Transcript 429; Call 2 (Exhibit P15A); P2A.
Call 2 (No. 1196)
(phone rings)
MALE1: Hello?
MALE2: Hello?
MALE1: What are you doin’?
MALE2: Nothing. (pause) What are you up to?
MALE1: Oh, just, fuckin’, lettin’ you know I just go back from Melbourne.
MALE2: Oh, yeah. Everything alright?
MALE1: Yeah. Uhm…
MALE2: Uhm‑(pause) Yeah?
MALE1:What was I gonna say to you… (pause) You remember, you send something with the old person?
MALE2: No. No I didn’t.
MALE1: Okay.
MALE2: Nuh.
MALE1: I’m going to need something here early next week cuz I got, uhm…
MALE2: Uhm, I got someone comin’ tomorrow.
MALE1: Where, here?
MALE2: No, here.
MALE1: Oh, okay.
MALE2: To come and see me.
(pause)
MALE1: Uhm…
MALE2: Yup. Yeah, he has quite a bit.
MALE1: What’s ‘quite a bit’?
MALE2: Mmmm… I don’t know exactly, but I know… it’ll be quite a bit.
MALE1: Yeah, is it worthwhile sending her or… just… just via the post?
MALE2:Oh, I’m hoping it’s going to be… mmm, between… I don’t know fifty and a hundred?
MALE1:Yeah, cuz I got, uh… I got a… eighty ready for next week. And I have to give money.
MALE2: Oh, okay then. Well, uhm…
MALE1: That’s what I’m sayin’.
MALE2: Uhm…
MALE1:This time next week… uh… I’m getting from Fontina fifty, sixty, I’m not sure yet, hundred percent.
MALE2:Oh, until these‑the last‑I had a few complaints for these last ones. They were fuckin’ wet.
MALE1: Were they?
MALE2: Yeah, fuckin’, really wet. And they started, fuckin’, getting’ mould on ‘em.
MALE1: Hey?
MALE2: The white mould?
MALE1: Yeah?
MALE2: Fuckin’, both people come back and, fuckin’, complained.
MALE1: alright no worries
MALE2:Fuckin’… tell ‘em to, fuckin’… you know, I ca‑ca‑I don’t wanna lose these guys.
MALE1: Yeah, no worries
MALE2:Fuckin’, they had to, fuckin’… take ‘em out and… fuckin’… you know, fuckin’… fuck around and …………
MALE1: Now lis‑yeah?
MALE2: … leave ‘em for a few days and… and then there was less‑
MALE1: These are com‑the‑these are coming from someone else anyway.
MALE2: Mmm. Fuckin’, just… yeah.
MALE1: Different people.
MALE2:They weren’t‑one guy wasn’t impressed, man. He came and, fuckin’, seen me and he reckons, fuckin’… what’s goin’ on?
MALE1: I saw‑I looked through the things and I thought they looked beautiful.
MALE2: Nah, looked beautiful, but it was just e‑when it was… when I opened them…
MALE1: Yeah?
MALE2: Yeah.
MALE1:Alright. No worries. So what do you want me to do? Are you going to send it in the post, or someone on Monday?
MALE2: Uhm…
MALE1: Let me know Sunday night anyway.
MALE2: Yeah. Uhm… if‑if it… I’m‑might‑yeah, yeah. I’ll probably go and see him.
MALE1: Mm. Alright.
MALE2:Alright? When are those other ones, uhm… how far away are they cause the g‑other guy’s asking me.
MALE1: Which other ones?
MALE2: The new ones that you got? The…
MALE1: The little ones?
MALE2: No, the oth-the… the other ones… the fifty or sixty you said?
(pause)
MALE1: Hey?
MALE2: You said you had forty or fifty there.
MALE1: of those little things
MALE2: No. The green.
MALE1: Or the green?
MALE2: Yeah.
MALE1: The… next three or four days I’ll… get ‘em in my hands and I’ll send ‘em.
MALE2: Oh, yeah. Cause-
MALE1:Uh, I’ll probably-probably Wednesday or Thursday I’ll get ‘em in my hands and send ‘em.
MALE2:cause one guy’s got the money-one guy’s got the money for twenty-five straight away.
MALE1: Yeah, no, that’s alright.
MALE2: Yeah. So…
MALE1:No, I’ll do it on-on, uhm… as soon as I get them I will send them via… the road.
MALE2: Yeah, alright.
…
The accused and DC continued speaking about the ‘small ones’ moving slowly. They then discussed telephones in the following terms:
...
MALE1: Now did you throw away the other phone
MALE2: Huh? Lets do a – yeah, why two?
MALE1:Cuz, oh, one just in case I need-uh, later on, instead of me remembering to go and get it, I’ll just say…
MALE2: Oh, okay.
MALE1: … throw this away and start this one.
…
During this call, DC told the accused that there has been a complaint about the quality of the substances sold, namely that it was wet and had gone ‘mouldy’. Detective Sergeant Hunt gave evidence that cannabis is required to be dried before being packaged so it did not develop mould and lose weight and value.[106] In call number 2, the accused said that when he looked at the substance through the ‘things’ he thought they ‘looked beautiful’.[107]
[106] Transcript 506-507.
[107] Transcript 429, Call 2 (Exhibit P15A).
On 19 November 2012, there was a further discussion between the accused and DC.[108] There was no dispute that during this call, the accused is MALE 1 and DC is MALE 2.
[108] Transcript 430; Call 3 (Exhibit P15A); P2A.
Call 3 (No. 1096)
(phone rings)
MALE1: Hello?
MALE2: Hey, what are you doin’?
MALE1: Uh, just got back home.
MALE2: Oh, okay. Well I got a little bit of a problem here.
MALE1: Yeah.
MALE2: With those ones‑those last ones.
MALE1: Why?
MALE2:Cunt that‑the‑the two, like, I gave ‘em too, man, the‑they’re… fuckin’, complainin’ their arse off. They were, fuckin’‑it‑
FEMALE1: (in background) He won’t be long, he’s just got ---------------------, won’t be too long.
MALE2: … they were too wet they reckon. They lost it‑they lost some…
MALE1: Oh, what can I do about it now?
MALE2:Oh, well I don’t know, fuckin’, they don’t wanna pay me‑they don’t wanna pay me all the money.
MALE1: Oh, what do they wanna do?
MALE2:Well… I told‑I told ‘em to bring one back to me, cuz they reckon…one guy said that he was d‑when he dried it out he lost two out of one. (pause) And I said –
MALE1: Two what?
MALE2: Two ounces… out of one-
MALE1: Oh, yeah, right, sure.
MALE2:Well what I said to him‑I said bring me‑bring me one back, I’m gonna do it myself.
MALE1: Yeah?
MALE2: Try it, and see, fuckin’, what, uhm… what it loses. And then…
MALE1: Mmm.
MALE2: … what it does, then I’ll fuckin’, uhm… then I’ll f‑I’ll have to fix it up.
MALE1: Mmm.
MALE2:But, fuckin’, both of them are complainin’ their arse off, man. S had to be, fuckin’… these guys are, fuckin’ top notch but, fuckin’, had to be, fuckin’, really bad for them to complain.
FEMALE1:(in background) ----------------------- Okay, I’ll get him to call you back in the minute.
MALE2: So…
MALE1: Mmm.
MALE2:I got most of it. I got most of it. Fuckin’… but… both of them are holding ten grand back off me. So… until, uh… I’m gonna do that th‑
MALE1: How much you got there?
MALE2: Uhm… I got over fifty.
MALE1: tomorrow evening I send her
MALE2: Yep?
MALE1: And, uh, send her straight back Wednesday morning.
MALE2: Oh, you don’t wanna give it to that dude?
MALE1: Which dude?
MALE2: Other guy?
MALE1: the old man?
MALE2: Yeah.
MALE1: He went back‑he won’t be back here in time.
MALE2: He won’t be back in time?
MALE1: (spoken over) I mean–
MALE2: I need those – oi, I need those… I need those things this week, man.
MALE1: Yeah, they’re gonna be–
MALE2: Yeah.
MALE1: Oh, they’re gonna be there… before… the weekend.
MALE2: Oh, good. Fuckin’… then why don’t you just, fuckin’…
MALE1: Alright?
MALE2: … send ‘em, and fuckin’… she can take it back?
MALE1: Cause – cause those ones want those things before they give them to me
MALE2: Oh.
MALE1: That’s my problem.
MALE2: Oh, okay. Fuck.
MALE1: Different people. They’re not…
MALE2: Oh.
MALE1: … my normal–
MALE2:Oi, man, those last ones. Those guys from last time, mate… go and tell ‘em, fuckin’, Sam, they can’t be like that because-
MALE1:I already mentioned that, and they said “no way”. Said… “They do a little bit-“
MALE2: Oh, no, that’s fuckin’ bullshit.
MALE1: They said they do ‘em a little bit softer so they don’t break.
MALE2:Nah, that’s fuckin’ bullshit. (pause) It’s fuckin’ bullshit, mate. (pause) cause they were-both of them wouldn’t complain. If one of ‘em complained, yeah, fuckin’…
MALE1: Mmm.
MALE2:But these guys never, fuckin’, complain, so it had to be fuckin’ bad. You know? And you know what, the thing he showed me… it was getting… like, a mould in there. Like a white mould.
MALE1: Yeah.
MALE2: So it had to be-
MALE1: when I got them they were already like that
MALE2:Oh, well, fuckin’, you tell the, fuckin’, cunts, mate. Fuckin’… I have to fix these guys up something, so… fuckin’, whatever… whatever happens today with this one here…
MALE1: Mmm?
MALE2: I’m just gonna do it for one day, to see what it does.
MALE1: Mmm?
MALE2:Whatever happens, it has to be fixed up or else they’re not gonna buy anymore. (pause) And I don’t wanna lose ‘em.
MALE1: Well the-tell ‘em we gotta meet halfway. We can’t lose it ourselves.
MALE2: Well I’m just saying-but no- but you tell those, fuckin’, pricks-
MALE1:I’ve already told these people and they’ve said “no way, that’s how we always do it”.
MALE2: Yeah, well that’s, fuckin-tell ‘em it’s fuckin’ no good then.
MALE1: Cause you told me to give-told me four days ago.
MALE2: Huh?
MALE1: You told me four days ago.
MALE2: Yeah, but-
MALE1:And I seen ‘em, and I said to ‘em w – and they said “Nah, that’s how we do it.” So… cuz otherwise if they don’t, if people complain__________________ no good.
MALE2: No, that’s bullshit. That’s fuckin’ bullshit–
MALE1: You see the way I normally do ‘em.
MALE2: Nah, that – … those ones before that were fuckin’ perfect they reckon.
MALE1: Yeah.
MALE2:And then… these ones here… for both of them to complain, mate, it had to be like that.
MALE1: I’ll be doing these ones.
MALE2: Yeah. Anyway…
MALE1: Alright?
MALE2: … fuckin’, uhm…
MALE1: I’ll be doin’ these ones.
MALE2: I did a few of those little ones… uh, yesterday.
MALE1: Yeah. Yeah?
MALE2: Not too many but, fuckin’ … uh, a little bit.
MALE1: Are you seriously expecting one hundred the other day?
MALE2: Huh?
MALE1: You were expecting______________-?
MALE2: No, I said between fifty and a hundred.
MALE1: Yeah?
…
During this call, DC said that the substance he received lost ‘two ounces out of one’. On the prosecution case, the parties were discussing the earlier shipment the subject of Count 1 and referred to in the first two calls. In this call, the substance was described as one which needed to dry out and which had been measured in imperial weights. It was also a substance which, when dried, could lose two ounces. On the prosecution case, to lose two ounces out of one, the one can only be a reference to a larger amount, such as one pound of cannabis. DC also said that the purchasers took ‘ten grand back off me’ but that he ‘got over fifty’. Later he said: ‘I got fifty there, though they’re holding back twenty on me, until I fuckin’ sort it out’.
On 20 November 2012, there was a further phone call between the accused and DC.[109] During this conversation, DC said that he ‘did that thing’ and ‘it lost one and a half’. The accused and DC then discussed having to ‘fix ‘em something’. They decided to send ‘two extra ones’. The accused and DC then had the following exchange:
[109] Transcript 430; Call 4 (Exhibit P15A); P2A.
Call 4 (No. 2)
…
MALE1: Alright, well one and half by how many was it?
MALE2: Thirty five.
MALE1: Fuck, what does that work out to? Nearly fifty.
MALE2: Fuckin’, yeah.
MALE1:Divided by two is twenty-five. (pause) I tell you what I’ll do, I’ll send you two extra ones, and you work it out with them, alright?
MALE2: So two extra? I’ll just give ‘em one each so they’re happy.
MALE1: Is that alright?
MALE2: Yeah, that’s cool. Yeah. (pause) Yeah, do that.
…
On the prosecution case, the value of the substance as discussed by the accused and DC in calls numbered 3 and 4 was consistent with the parties discussing 35 pounds of cannabis. The prosecution submitted that as a percentage of a pound, two ounces is about 12%.[110] In Western Australia in 2012, a pound of cannabis was worth $3,600 - $4,500.[111] By taking the lower to middle range of 35 pounds of cannabis being worth about $130,000, if each pound lost two ounces or 12%, and it was rounded up to a 15% refund, that would result in a refund of $19,500, which is broadly consistent with the $10,000 ‘held back’ by each Western Australia purchaser. As such on the prosecution case, the proposed compensation is consistent with the purchase price of 35 pounds of cannabis, and consistent with the payment to be withheld if two ounces was lost from each pound of cannabis.[112] On the prosecution case, it supports an inference that the accused and DC were discussing payment for a previous shipment of 35 pounds of cannabis.
[110] Transcript 628.
[111] Transcript 629.
[112] Transcript 629.
In call numbered 3, the accused expressed some urgency in receiving money which he said was required for a meeting. DC spoke of the accused sending ‘her straight back Wednesday morning’. The Wednesday following this call was 21 November 2012. DC inquired whether the accused wanted him to send it with ‘the old man’ (PM). The accused was concerned he would not be ‘back here in time’.
There was evidence that the truck driven by PM would not return from Western Australia to South Australia until 22 November 2012.[113] There was also evidence that on 20 November 2012 at 2.36pm, a person using the name ‘Leah Tilley’ travelled on a Qantas flight from Adelaide Airport in South Australia to Perth Airport in Western Australia. No luggage was checked in for the flight.[114] On 21 November 2012, at 8.10am, a person using the name ‘Leah Tilley’ was scheduled to travel on a Virgin Australia flight from Perth Airport in Western Australia to Adelaide Airport in South Australia at a cost of $539, with the fare being paid in cash.[115] On 21 November 2012, at 9.16am, a person using the name ‘Leah Tilley’ checked in for the Virgin Australia flight.[116] On 21 November 2012, at 9.53am, a person using the name ‘Leah Tilley’ boarded the Virgin Australia flight.[117] LT was placed under surveillance.[118] Between 1.40pm and 1.55pm on 21 November 2012, LT was observed travelling in the front passenger seat of a taxi from Adelaide Airport to the accused’s home address at Mile End. She was observed leaving the taxi and walking towards the premises, carrying luggage.[119] The airline bookings had a mobile telephone number subscribed to LT.[120]
[113] Agreed Facts No 1, Fact 28(xvi) (Exhibit P30); P18.
[114] Agreed Facts No 1, Fact 36, Exhibit P30.
[115] Agreed Facts No 1, Fact 37, ExhibitP30.
[116] Agreed Facts No 1, Fact 37, ExhibitP30.
[117] Agreed Facts No 1, Fact 37, ExhibitP30.
[118] Transcript 338; ExhibitP7 (SD1).
[119] Agreed Facts No 1, Fact 29, (Exhibit P30).
[120] Agreed Facts No 1, Fact 38, (Exhibit P30); Transcript 335.
On 11 January 2013, DC was arrested by Western Australia Police and charged with four counts of possessing a prohibited drug with intent to sell or supply, and possess an unlicensed firearm. On 12 January 2013, DC was granted conditional bail.[121] On 12 January 2013 at 1:19am (Western Australia time) (3.49am South Australia time),[122] the accused received a phone call from an unknown person.[123] There was no dispute that MALE 1 was the accused. The following conversation occurred:
[121] Agreed Facts No 1, Fact 79, (ExhibitP30)
[122] Transcript 477.
[123] Transcript 470; Call 19(Exhibit P15A); P2A.
Call 19 (No. 420)
(phone rings)
MALE1: Hello?
MALE2: Hey.
MALE1: What are you doin’?
MALE2: Sleeping.
MALE1: Uhm… your mate here is fucked.
MALE2: Why?
MALE1: Really fucked.
(pause)
MALE2: Yeah?
MALE1: Really, really, really fucked.
(pause)
MALE2: When?
MALE1: And they know your name here
MALE2: why
(pause)
MALE1: I don’t know. Like, I mean fucked, man. When I mean fucked, I mean fucked.
MALE2: Anything to do with me?
MALE1: Fuckin’ … I don’t know.
MALE2: what did they take
MALE1: everything, everything that possibly have.
MALE2: Alright, no worries, mate.
MALE1: Alright. Ta ta.
MALE2: Alright, Ciao.
(call terminated)
At 2:01pm on 12 January 2013 there is a further telephone call between the accused and another male.[124] There was no dispute that MALE 1 is the accused. It is disputed that MALE 2 was George Katsambas, and in the absence of any further evidence to establish the identity of the caller, I am not satisfied MALE 2 was George Katsambas. The accused and the unknown caller have the following conversation:
[124] Transcript 470; Call 20 (ExhibitP15A); P2A.
Call 20 (No. 440)
(long pause)
MALE1: Hello?
MALE2: How ya goin’, buddy?
MALE1: Hey?
MALE2: What’s happenin’?
MALE1: Uhm… forget about it, hey? With, uh, Mimo.
MALE2: Why?
MALE1: He’s gone. Worse than you. (pause) Big time.
(pause)
MALE2: What?
MALE1: Big… big… big… big time. (pause) You know what was supposed to come to you?
MALE2: Yeah?
MALE1: They got… and about another thirty different things.
MALE2: What?
MALE1: Yeah. (pause) Red-handed.
MALE2: Oh, no, man.
MALE1: His lawyer told him, uhm, minimum bottom fifteen
MALE2: Oh that’s fucked.
MALE1: Mmm.
MALE2: Poor cunt. Is there anything we can do for him?
MALE1: He’s – hey?
MALE2: Anything I can do for him?
MALE1: He already, fuckin’, asking for lefta (money)
MALE2: No, fuckin’ –
MALE1: George. George. George.
MALE2: Yeah?
MALE1: I lo-I lost everything.
(pause)
MALE2: Oh… no…
MALE1: Yeah, you know what I mean by ev-everything?
MALE2: Yeah, ________________
MALE1:Three hun-three hun-three hundred and thirty seven dollars I put on that horse today.
(pause)
MALE2: Fuck…
MALE1: Yup. (pause) Anyway, he’s, uh…
MALE2: Ah…
MALE1:… uh-l-lo-on Monday…he-he’s gonna go home. And, uh, then I’ll, uh.. I’ll see what-his brother’s gonna come and t-tell me how-what the doctor said. Whether it’s real bad cancer or what the story is.
MALE2: Oh, shit.
MALE1: Mmm.
MALE2: Fuckin’ hell.
(pause)
MALE1: Yeah.
MALE2: That’ no good, man. (pause) ______________ cancer.
MALE1:Every-do you know-do you know what I mean by every single possible disease you could get… (pause) He had every single possible disease. Not just one disease, every single possible disease.
MALE2: Jesus Christ.
MALE1: Yeah. (pause) You know-you know when you got sick… that time?
MALE2: You know, you know_______________ are you?
MALE1: Uhm… I am. I will be. (pause) Yeah, I think ninety-nine percent sure.
MALE2: Fuckin’ hell.
MALE1: Anyway… tomorrow… I’ll give you a number. A number. Alright?
MALE2: Go and get- got and get- go and see the… the fatty.
MALE1:Nah, nah. I’ll go and get something tomorrow… I’ll __________ him tomorrow. And I’ll, uh… talk to ya.
MALE2: Jesus Christ.
MALE1: Mmm. (pause) Hey I’m going-
MALE2: Alright.
MALE1: I’m going to the Trots. I’m going to watch my two horses win tonight.
(pause)
MALE2: Oh _____________
MALE1: You know, I’m just gonna go-I just want-I just want to get out of the house.
MALE2: Are they gonna win?
MALE1: Yeah, they should both win.
MALE2: They short?
MALE1: Uh, four dollars and four dollars.
MALE2: What races are they on?
MALE1: Race two, number six.
(pause)
MALE2: Race two…
MALE1: And r-and race five, number seven.
MALE2: Race five. Number seven.
MALE1: Mmm.
MALE2:Fuckin’ hell, bro. (pause) Oh, you don’t know how much (spoken over) Oh you don’t know how much______________
MALE1: I’m still shaking, mate.
MALE2: Well, do you know what? Me and thirty, you know what?
MALE1:Two o’clock this morn-two oc-two-… two o’clock this morning… hey, two o’clock this morning. I got the phone call.
MALE2: Aah. (pause) I feel sick, man.
MALE1: And-yeah. (pause) Anyway… I-can I speak to you tomorrow?
MALE2: Yeah, you just go and-yeah, go and grab that tool-I’ll do-
MALE1: Yeah, I’m going-I-I-will tomorrow and I’ll get it. I’ll go and get it tomorrow.
MALE2: Go and get it tonight.
MALE1:I can’t, I’m just about to leave. I got-I got people with me at the trots tonight, and we’re leaving now.
MALE2: Alright, bro. Alright.
MALE1: I’ll-I’ll get it…
MALE2: Fuckin’ hell.
MALE1: … like, in the morning and I’ll come and s-I’ll… I’ll do it.
MALE2: Alright,
MALE1: Alright, mate. _____________(to background) You ready?
(call terminated)
Detective Dolan gave evidence there were no intercepted telephone calls between calls numbered 19 and 20.[125] The prosecution submitted that it was open to infer that when the accused says that he had received a call at about 2am, he is referring to call 19, notwithstanding that call 19 is recorded as having been received at 3.49am. [126] On the prosecution case, in referring to ‘three hundred and thirty seven dollars’ in call 20 which he put on the horse, the accused is in fact referring to $337,000 worth of illicit substances for which he has not been paid.[127] To that end, Detective Hunt gave evidence that in the drug trafficking trade, short form terms can be used for monetary amounts or value. For example, a reference to 100 can mean 100,000.[128]
[125] Transcript 477.
[126] Transcript 640.
[127] Transcript 640.
[128] Transcript 511.
On 13 January 2013, the accused also called LT and discussed the plight of DC.[129] The accused said that ‘Mimo went down real bad’. LT then asked ‘Holiday?’ and the accused replied ‘about twenty’.
[129] Transcript 471-472; Call 21 (Exhibit P15A); P2A.
Further, after DC’s arrest, there was a marked change in the way that the accused and DC communicated with each other. From the date of DC’s arrest, the accused communicated with DC and PM, via others, usually through AC. In an intercepted telephone call on 18 January 2013, AC told PM that ‘my brother said to ring you and see if you – if you’d seen him’. PM later said in the conversation ‘if he likes to, give me a call’, whereby AC replied to PM ‘He wont-he wont be able to call you.’ PM then said ‘…something happened last week and I wanna talk to him. That’s why’. AC responded ‘Yeah, yeah, yeah, he knows what happened up there’.[130]
[130] Call 23 (Exhibit P15A).
There were no intercepted phone calls from 18 January 2013 until June 2013. The accused was on electronically monitored home detention bail at his home address at Mile End between 29 April 2013 and 16 November 2013, inclusive.[131]
[131] Transcript 343; P17; Agreed Facts No 1, Fact 20 (Exhibit P30).
From June 2013, there was only one occasion when, on the prosecution case, the accused contacted DC directly and spoke with him, about money owed by DC to the accused.[132]
[132] Call 38 (Exhibit P15A).
There was also another occasion when AC called DC and passed the telephone to the accused to speak with him. In that call the accused referred to DC as ‘the one he doesn’t want to speak to’.[133] On the prosecution case, the accused deliberately placed a distance between himself and DC to avoid detection by the police because of DC’s arrest.
[133] Transcript 641; Call 23 (Exhibit P15A).
Uncharged acts relevant to Counts 2 to 5
On the prosecution case, several intercepted telephone calls from June 2013 to November 2013 revealed that the accused was involved in the business of trafficking drugs for sale in Western Australia by directing and instructing other family members and associates to act on his behalf in packaging and transporting the drugs for sale in Western Australia.[134] That propensity evidence is relevant to Counts 2 to 5. More specifically, the prosecution relied on the intercepted telephone calls made during that time period to establish that the accused was giving instructions to AC about transporting drugs, and was being advised of the movements of the courier of the drugs, PM.[135] There were also discussions about covert mobile telephones;[136] and money owed by DC to the accused for uncharged drugs sales.[137]
[134] Transcript 642.
[135] Calls 32-33, 35, 43-48, 73-82, 95-100 (Exhibit P15A).
[136] Call 39, 78 (Exhibit P15A).
[137] Call 38, 85-89 (Exhibit P15A).
I am also satisfied that the substance was cannabis. The units of the item discussed in the intercepted telephone calls are consistent with the imperial unit of a pound which is a weight at which cannabis is commonly sold. In the intercepted telephone calls directly relevant to this count, the substance was spoken of in Italian suggesting it was illicit. PM had lost his employment and access to a truck.[297] He took the train to Western Australia but returned by plane suggesting that the substance which he was transporting was illicit as there was less chance of detection of cannabis on the train than by air. The substance was also described when unpackaged as dry, which was consistent with it being cannabis. Further, the substance could be packaged with ‘machines’[298] and there were instructions from the accused to CaC to ‘…suck them all up and just pull them out like I used to and seal them…’[299] consistent with vacuum sealing, that being a type of packaging in which cannabis is commonly transported to avoid detection of the cannabis by smell.[300]
[297] Transcript 344.
[298] Call 55 (Exhibit P15A).
[299] Call 55 (Exhibit P15A).
[300] Transcript 505.
Further, the telephone call by AC to the accused during which he advised him that ‘he came’ and that there was ‘twelve’ was made from the home address of CaC.[301] Later that month, AC told the accused that CaC was ‘scared’ and ‘she didn’t like it in her yard too long’.[302] There was also evidence that on 15 November 2013, about six weeks later, police located at her premises a cannabis head stripper with residue in the bowl and which smelt of cannabis,[303] a ‘salad dryer’ or ‘head stripper’,[304] and a small amount of green vegetable matter in the spare room, along with an odour of cannabis.[305] There was also green vegetable matter and vacuum bags located in a box in the spare room.[306] A Sunbeam vacuum packaging system was located in a vehicle associated with AC parked at the premises.[307]
[301] Transcript 215, 216 and 644; Call 51 (Exhibit P15A).
[302] Call 64 (Exhibit P15A).
[303] Transcript 424-425.
[304] Transcript 425.
[305] Transcript 420. Agreed Facts No 2, Fact 2 (Exhibit P42); Exhibit P28; Photographs 16-24 (Exhibit P29).
[306] Transcript 420, 423.
[307] Transcript 423.
PM was also located at the Keswick Railway Station on 14 November 2013 with a significant amount of cannabis which was vacuum sealed three times, that is, in the same form of packaging as discussed during the intercepted telephone calls directly relevant to the second count.
Those features of the evidence taken together establish beyond reasonable doubt that the substance the subject of Count 2 was cannabis, and excludes the reasonable possibility that it was any other substance.
I am further satisfied that the accused took part in the process of the sale of the cannabis by directing its packaging and causing it to be transported for sale to DC in Western Australia. I have reached that conclusion for the following reasons.
First, on 3 October 2013 at 11.11am, the accused spoke with PM and agreed to pay for his ‘tickets’.[308] Given that this telephone call was on the same day that PM travelled to Perth, Western Australia, and involved a fare of a similar cost, I am satisfied the accused paid for the airfare of PM.
[308] Call 53, (Exhibit P15A), P2A.
Secondly, in the days preceding PM leaving for Perth, Western Australia, AC reported to the accused, and in turn received directions from the accused which I am satisfied related to the packaging and transport of cannabis for sale to DC in Western Australia. On 2 October 2013, at 6.52pm, AC telephoned the accused to tell him that ‘he came’ and the accused speaking in Italian directed AC to ‘tell mum that tomorrow we’ll organize something’ and ‘when the kids leave you know what to do’.[309] Later that evening, at 8.18pm AC again called the accused and told him ‘there is another four’. The accused then asked whether they were ‘dry’. The accused then told AC in Italian to ‘do those ones and tomorrow when we finish them we’ll see how many they are’ and ‘or maybe I’ll send it regardless’.[310]
[309] Call 51, (Exhibit P15A), P2A.
[310] Call 52, (Exhibit P15A), P2A.
On the following day, the accused directed AC and CaC as to the packaging of the cannabis. CaC called the accused and spoke to him about ‘machines’ not working and asked him ‘what do we do’. The accused suggested checking the store Gaganis and ‘otherwise just suck them all up and just pull them out like I used to and seal them’.[311] The accused then called CaC back a short time later and asked her ‘did you fix them’.[312] He rang again and asked ‘do you still have a lot to do?’ CaC responded ‘it’s the third time now’ consistent with three layers of vacuum sealing.[313]
[311] Call 55, (Exhibit P15A), P2A.
[312] Call 56, (Exhibit P15A), P2A.
[313] Call 57, (Exhibit P15A), P2A.
Thirdly, after PM had arrived in Perth, Western Australia on 5 October 2013, he left a message on AC’s telephone service at 12.04pm in which he said ‘Tony it’s Peter. It’s all good mate. But tell our friend to give me a call please. Thank you.’[314] About 20 minutes later at 12.26pm, PM telephoned AC and told him it was ‘all good mate’ and AC said ‘No worries, I’ll let him know’.[315] PM also said ‘can you tell him to ring me if he can’. At 12.27pm, about one minute later, AC rang the accused and said in Italian ‘all good’ and he wants you to ring.’[316] Later that day at 1.16pm, AC called PM and put the accused on the line to speak with PM. Given the close timing of the telephone calls between PM and AC on the one hand, and AC and the accused on the other, I am satisfied the person ‘our friend’ referred to in the earlier calls was the accused. That finding is fortified by another intercepted telephone call had on 28 October 2013 when AC spoke with PM and said ‘here’s our friend’ and then the accused spoke with PM.[317]
[314] Call 59, (Exhibit P15A), P2A.
[315] Call 60, (Exhibit P15A), P2A.
[316] Call 61, (Exhibit P15A), P2A.
[317] Call 88, (Exhibit P15A), P2A.
The fact that PM, after arriving in Perth, Western Australia, reported to the accused via AC that it was ‘all good’ was significant in establishing that the accused directed the packaging and transport of the cannabis for sale in Western Australia.
Further, on 5 October 2013 at 1.13pm, the accused asked PM: ‘Whats the matter? Yeah’. PM replied ‘...what I got, they were good. Everything was good’ and ‘But that bloke says he needs more’. The accused replied ‘Yeah, no we cant do any – I cant do anything for two weeks now.’ PM asked ‘Is he going away?’ The accused replied ‘Nah’. PM responded ‘Is he goin’ for holiday next week? Dominic said he was going away’.[318] It was clear from this call that the cannabis had been delivered to DC.
[318] Call 62, (Exhibit P15A), P2A.
Fourthly, the accused and his wife were in receipt of money from unidentified sources during the charged period.
Fifthly, there was also evidence that the accused was engaged in an established and ongoing business of trafficking cannabis at a time proximate to Count 2. I am satisfied the intercepted telephone calls admitted for a propensity purpose on Counts 2 to 5 revealed that the accused was engaged in an established business to transport cannabis for sale in Western Australia.
As to the fourth and fifth legal elements of the offence, for the reasons outlined earlier, I am satisfied AC’s statements in the intercepted calls numbered 51, 52 and 55 as to the quantity of the cannabis, were said in furtherance of a common purpose to commit the charged offence, and are admissible for the truth of the contents of the statement. Consequently, I am satisfied beyond reasonable doubt that the accused trafficked 19 pounds of cannabis, that being a large commercial quantity of the drug, and that he intended to do so.
Accordingly, I am satisfied the prosecution has proved beyond reasonable doubt each element of Count 2 and I find the accused guilty of that offence.
Count 3
I am satisfied that there were 28 pounds of cannabis in South Australia which was transported to, and received by DC in Western Australia; and that the accused directed the packaging of the cannabis and caused the cannabis to be transported for sale to DC in Western Australia and in doing so, took a step in the sale of the cannabis to DC. I am further satisfied that the accused trafficked a large commercial quantity of cannabis, there being two kilograms or more, and the accused intended to traffic in a large commercial quantity of cannabis. There was no dispute that cannabis is a controlled drug, and I am satisfied that the accused knew cannabis was a controlled drug by reason of his efforts to avoid detection.
I am satisfied that cannabis was transported from South Australia to Western Australia and received by DC on the basis of the following evidence. On 10 October 2013, a person using the name ‘Peter Mindis’ boarded the Indian Pacific train from the Keswick Railway Station passenger terminal at a cost of $415 paid by EFTPOS.[319] On 12 October 2013, the Indian Pacific train arrived in Perth, Western Australia.[320] On 12 October 2013 at 12.32pm, PM called AC.[321] During this telephone call, PM said ‘we just arrived mate’. AC asked ‘all good?’ and PM replied ‘So far, so good’. AC advised PM that ‘my friend said to go past the shop .. cuz they’ll have something for you’. For the reasons outlined earlier, I am satisfied that when PM or AC referred to ‘my friend’ they were referring to the accused. DC worked at a pizza shop.[322] Two minutes later, AC called the accused and said ‘yeah just arrived’. The accused asked ‘all good?’ and AC responded ‘yeah’.[323] About an hour later, at 1.36pm, PM called AC and said ‘it’s all good mate’ and ‘to tell .. our friend I need some more, more, more’.[324] Given PM was instructed by AC that ‘my friend said to go past the shop’ and later PM agreed that it was ‘all good’, I am satisfied that PM was confirming to AC the successful delivery of cannabis to DC.
[319] Agreed Fact 43 (P30).
[320] Agreed Fact 43 (P30).
[321] Transcript 485; call 67 (Exhibit P15A); P2A.
[322] Call 27, (Exhibit P15A), P2A.
[323] Call 68, (Exhibit P15A), P2A.
[324] Transcript 485-486; call 70 (Exhibit P15A); P2A.
Further, on the day before PM travelled to Perth, Western Australia, there was evidence that a substance was delivered to the home address of CaC. On 9 October 2013 at about 9.12am, the accused called AC. [325] AC said that their mother was scared. The accused asked ‘why, did the big one come last night?’ and ‘did he bring something?’ AC replied that he did: ‘yeah’, ‘seven’ and that their mother ‘doesn’t like it in her yard too long’. The accused responded by saying ‘alright I’ll go get it now and bring it here, alright no worries, Did you spray it?’ AC responded ‘No. Have to go and get him. He came ten minutes before I went to get him’.
[325] Transcript 484; call 64 (Exhibit P15A); P2A.
Later that evening, the accused called AC. [326] During this conversation the accused asked AC ‘how many are they’ and AC responded ‘twenty eight’. The accused asked ‘did he say he comes tomorrow’ and AC responded ‘yeah., said he comes and to see us tomorrow morning’. The following day on 10 October 2013, PM travelled to Perth, Western Australia.
[326] Transcript 484-485; call 66 (Exhibit P15A); P2A.
I am also satisfied that the substance was cannabis. The units of the item discussed in the calls are consistent with the imperial unit of a pound which is a weight at which cannabis is commonly sold.[327] In the intercepted telephone calls directly relevant to this Ccount, the substance was spoken of in Italian suggesting it was illicit. At this time, PM was not working as a truck driver. He took the train to Perth, Western Australia, but returned by plane suggesting that the substance which he was transporting was illicit as there was less chance of detection of cannabis on the train than by air. It was also a substance CaC did not want in the yard too long, suggesting it was illicit. The substance was one which needed to be ‘sprayed’. AC also said that ‘one lot we made it twice, three times’[328] consistent with it having been vacuum sealed three times, that being a type of packaging in which cannabis is commonly transported to avoid detection of the cannabis by smell. Further, PM was arrested at the Keswick Railway Station one month later on 14 November 2013, with cannabis in his luggage, which was packaged in three layers of vacuum sealed bags. There was also evidence that police located at the premises of CaC a cannabis head stripper with residue in the bowl and which smelt of cannabis,[329] a ‘salad dryer’ or ‘head stripper’,[330] and a small amount of green vegetable matter in the spare room, along with an odour of cannabis.[331] There was also green vegetable matter and vacuum seal bags located in a box in the spare room.[332] A Sunbeam vacuum packaging system was located in a vehicle associated with AC parked at the premises.[333]
[327] Transcript 504.
[328] Call 66, (Exhibit P15A), P2A.
[329] Transcript 424-425.
[330] Transcript 425.
[331] Transcript 420. Agreed Facts No 2, Fact 2 (Exhibit P42); Exhibit P28; Photographs 16-24 (Exhibit P29).
[332] Transcript 420, 423.
[333] Transcript 423.
Having regard to those matters, I am satisfied beyond reasonable doubt that the substance the subject of Count 3 was cannabis.
I am further satisfied that the accused directed the packaging of the cannabis or caused the cannabis to be transported for sale to DC in Western Australia, and in so doing took a step in the process of sale of cannabis to DC. I have reached that conclusion for the following reasons. First, the accused made inquiries of AC as to whether persons had delivered the cannabis.[334] When the accused was advised that a person had brought ‘seven’ and his mother was scared, he said “I’ll go get it now and bring it here’ and he asked ‘did you spray it’. In so doing, the accused was issuing instructions that the cannabis needed to be sprayed. I consider his question ‘did you spray it’ in effect was an instruction to AC when looked at in the context of their broader relationship as disclosed by the other telephone calls. I also do not consider that the fact the substance needed to be sprayed was inconsistent with it being cannabis. At this stage, the cannabis was not packaged in vacuum sealed bags as demonstrated by a later call in which the accused instructed AC to ‘just leave them, Carol to make them tomorrow’.[335] Further, once PM arrived in Perth, Western Australia, he telephoned AC and AC said ‘my friend said to go past the shop’.[336] That is, there was another instruction from the accused ‘my friend’ passed to PM via the intermediary AC.
[334] Call 64, (Exhibit P15A), P2A.
[335] Call 66, (Exhibit P15A), P2A.
[336] Call 67, (Exhibit P15A), P2A.
Secondly, a short time after PM arrived in Perth, Western Australia, he spoke with AC at 12.32pm, and said ‘so far, so good’.[337] Less than two minutes later, at 12.34pm, AC contacted the accused and reported that PM had just arrived and the accused asked ‘all good’.[338] Given the close timing of the calls, PM is reporting back to the accused, via AC, about the delivery of the cannabis.
[337] Call 67, (Exhibit P15A), P2A.
[338] Call 68, (Exhibit P15A), P2A.
Thirdly, the accused and his wife had money from unidentified sources or unexplained wealth during this charged period.
Fourthly, there was evidence that the accused was engaged in an established and ongoing business of trafficking cannabis at a time proximate to Count 3. I am satisfied the intercepted telephone calls admitted for a propensity purpose on Counts 2 to 5 revealed that the accused was engaged in an established business to transport cannabis for sale in Western Australia.
I am satisfied on the evidence outlined above that the accused’s statements amounted to directions to his family and associates in respect of packaging the cannabis and that the accused caused the cannabis to be transported for sale to DC in Western Australia.
As to the fourth and fifth legal elements of the offence, for the reasons outlined earlier, I am satisfied AC’s statements in the intercepted calls numbered 64 and 66, as to the quantity of the cannabis, were said in furtherance of a common purpose to commit the charged offence, and are admissible for the truth of the contents of the statement. Consequently, I am satisfied beyond reasonable doubt that the accused trafficked in a large commercial quantity of the drug, and that he intended to do so.
Accordingly, I am satisfied the prosecution has proved beyond reasonable doubt each element of Count 3 and I find the accused guilty of that offence.
Counts 4 and 5
As to Count 4, I am satisfied there were 13.3 kilograms of cannabis in South Australia, and the accused directed the packaging of the cannabis for sale to DC in Western Australia and in doing so, took a step in the sale of the cannabis to DC. I am further satisfied that the accused trafficked a large commercial quantity of cannabis, there being two kilograms or more, and the accused intended to traffic in a large commercial quantity of cannabis. There was no dispute that cannabis is a controlled drug, and I am satisfied that the accused knew cannabis was a controlled drug by reason of his efforts to avoid detection.
As to Count 5, I am satisfied that there were six kilograms of substance containing MDMA or 20,079 pills in South Australia. I am also satisfied that the accused directed the packaging of the MDMA for the purpose of its sale to DC in Western Australia, and in so doing took a step in the sale of the MDMA to DC in Western Australia. There was no dispute that there was a large commercial quantity of MDMA, there being one kilogram or more in a mixture, and I am satisfied that the accused intended to traffic in a large commercial quantity of MDMA. There was no dispute that MDMA was a controlled drug, and I am satisfied that the accused knew MDMA was a controlled drug by reason of his efforts to avoid detection.
On 14 November 2013, at about 5.50pm, police officers attended at the Keswick Railway Station. The Indian Pacific train was due to depart for Perth, Western Australia at 6.40pm. PM was arrested and his luggage was seized. It was later found to contain 13.3 kilograms of female cannabis plant material in 35 vacuum sealed plastic bags, and 20,079 tablets weighing 6.035 kilograms and containing approximately 927 grams of MDMA.[339] The tablets were packaged in zip-lock plastic bags which were, in turn, packaged inside vacuum sealed plastic bags within a green Woolworths bag. With two exceptions, each zip-lock plastic bag was unmarked and contained 200 tablets. Two zip-lock plastic bags were marked “56” and “23” and contained 56 and 23 tablets respectively.[340]
[339] Agreed Fact 62 (P30).
[340] Agreed Facts No 1, Fact 63 (Exhibit P30).
On the basis of the intercepted telephone calls directly relevant to these Counts, and the movements of the accused’s family and associates in the preceding days, I am satisfied that the accused directed the packaging of the cannabis (Count 4) and MDMA (Count 5) for sale to DC in Western Australia. I am so satisfied for the following reasons.
First, the intercepted calls revealed that the accused was waiting for a delivery. On Tuesday, 12 November 2013, at 12.50pm, PM spoke with AC and asked him ‘any news from our friend?’. AC said that he would probably see him in about an hour, hour and a half’ .. ‘Alright? And then I’ll let you know’.[341] I am satisfied PM was referring to the accused when he said: ‘my friend’ for reasons already outlined. On the same day, at 3.17pm, AC spoke with the accused and asked: ‘didn’t Mico ring you?’; ‘does he have anything?’. The accused answered, ‘no why?’. AC answered ‘oh nah, no that he, the old man rang’. The accused later responded ‘Just say to him I’m waiting’.[342] At 3.18pm, AC called PM and said ‘Yeah, he just said to tell you ... nothing yet still waiting’.[343] At 6.26pm, AC called PM and said ‘yeah our friend said if you could go see him on Thursday’.[344] In these calls, the accused via AC advised PM that he was waiting for something to be delivered to him; and for PM to see him on Thursday, that being 14 November 2013.[345]
[341] Call 102, (Exhibit P15A), P2A.
[342] Call 103, (Exhibit P15A), P2A.
[343] Call 104, (Exhibit P15A), P2A.
[344] Call 105, (Exhibit P15A), P2A.
[345] Call 105, (Exhibit P15A), P2A.
Secondly, a series of intercepted telephone calls made on the following day, evinced the accused directing the packaging of cannabis (Count 4) and MDMA (Count 5) which were subsequently provided to PM to transport for sale to DC in Western Australia. On Wednesday 13 November 2013, at 11.04am, AC called PM and told him: ‘Our ... our friend’s at home, so you can go see him’.[346] Later that evening, at 8.18pm, the accused spoke with CaC and asked ‘is there anyone?’. She responded ‘no’. The accused told his mother ‘open the door there’ and ‘do what you have to do’ and ‘that tomorrow Carol (CnC) is coming there’.[347] Consistent with the accused’s statements to CaC, later that evening, at 8.38pm, CnC spoke with the accused and said: ‘personally I’d get it refunded’. The accused asked: ‘How bad?’. She responded ‘Bad’. He asked ‘H-two-oh?’ and he asked if ‘Can someone bring one? here?’. A short time later, at 9.01pm, AC spoke with PM and asked him to see ‘our friend .. uh tomorrow at eleven’.[348]
[346] Call 107, (Exhibit P15A), P2A.
[347] Call 110, (Exhibit P15A), P2A.
[348] Call 112, (Exhibit P15A), P2A.
On the basis of those telephone calls, I am satisfied that: the accused has instructed CaC to receive the cannabis at his home; the accused had told CnC to attend at CaC’s premises to inspect the cannabis and she did so; and CnC was not content with the quality of the cannabis; and that the accused asked about the water content is consistent with the substance delivered having been cannabis.
Thirdly, the movements of PM, AC, CaC and AF on the following day, Thursday 14 November 2013, combined with the intercepted telephone calls, established that the accused directed the packaging of the cannabis and MDMA for sale to DC. On the basis of that evidence, as well as the items associated with cannabis located during the search of CaC’s home, and the items associated with MDMA located during the search of AF’s home, I am satisfied that the cannabis was delivered to, and packaged at CaC’s home, and the MDMA was packaged at AF’s home, at the direction of the accused.
On 14 November 2013 at 10.30am, PM attended at the accused’s home address and remained there for 30 minutes. PM went back to the accused’s home for a second time that day, arriving at 12.23pm. He then attended at the Keswick Railway Station arriving at 12.35pm, before returning back to the accused’s home for a third time at 12.52pm. It was an agreed fact that a person using the name ‘Peter Mindis’ booked to travel to Perth, Western Australia by train on 14 November 2013 and paid for the fare in cash. [349] It is significant that PM purchased the train fare in between two visits with the accused.
[349] Agreed Fact No 1, Fact 45 (Exhibit P30).
Shortly before PM arrived at the accused’s home, the accused rang CaC and said ‘the old man is coming there’, ‘changed his mind, let him tell you’ and ‘understood’.[350] Consistent with the accused’s conversation with CaC, PM left the accused’s home at 12.52pm (almost immediately after arriving) and travelled to CaC’s home at Torrensville, arriving at 12.54pm.[351] PM was observed entering the house and then returning to his vehicle. He left the address in his vehicle at 12.58pm.[352]
[350] Transcript 341; Call 114 (Exhibit P15A); P2A.
[351] Transcript 358-359.
[352] Transcript 359.
Meanwhile at 2.12pm, the accused called AC.[353] During the call, AC asked whether the accused wanted him to go to his sister’s place, and the accused said ‘yeah, yeah’. The accused then asked AC whether their mother was going to wait at her home and AC said (in Italian) that she was as ‘the person is coming to put up the blind.’ AC left his home and travelled to AF’s home.
[353] Transcript 341; Call 115 (Exhibit P15A); P2A.
At 2.30pm, CnC called AC (who was still at the Mile End home of AF) and told AC that ‘Hello. Yeah. I’m on my way’.[354] At 2.32pm, CnC was observed leaving CaC’s premises carrying a multicoloured bag. She was then observed driving back to her home at Mile End, arriving at 2.37pm.[355] CnC then left her home via the side entrance carrying a large yellow shopping bag with red writing on it.[356] Between 2.40pm and 2.45pm, CnC was observed walking west on Ballara Street carrying the yellow shopping bag, across South Road and in the vicinity of AF’s home at Mile End.[357]
[354] Transcript 341; Call 116 (Exhibit P15A); P2A.
[355] Transcript 361.
[356] Transcript 362.
[357] Transcript 362; JPB1 (Exhibit P7); Transcript 363-364; Photograph 2128 (P20).
At this time, AC, AF and CnC were observed to be present at AF’s home. The following day, police located in the dining room a set of scales[358], a Sunbeam heat-sealing machine which was located inside a green Woolworths bag inside of a blue bag[359], and a box of latex gloves.[360] Police also seized numerous used latex gloves and resealable bags with visible residue which were located in a wine glass box.[361] MDMA was detected on one latex glove.[362] A DNA profile recovered from the inside of the latex glove was more than 100 billion times more likely to have been obtained if AF was the source of the DNA rather than an unknown contributor.[363] A plastic Coles shopping bag located at the premises contained plastic vacuum seal bags, a ‘Pony Princess’ bag and a police officer detected a smell emanating from it consistent with cannabis.[364] The Pony Princess bag also contained some plastic vacuum seal bags.[365]
[358] Transcript, 384.
[359] Transcript 385; Exhibit P31.
[360] Transcript 385.
[361] Transcript 387, 411-412.
[362] Agreed Facts No 1, Fact 68 (Exhibit P30).
[363] Agreed Facts No 1, Fact 69 (Exhibit P30).
[364] Transcript 407-408, Agreed Facts No 2, Fact 1 (Exhibit P42); Photograph 5 (Exhibit P24); Photograph 5 (Exhibit P26); Photograph 1 (Exhibit P27).
[365] Transcript 386, 408-409.
The presence of AC, CnC and AF at AF’s home, combined with the items seized from the premises of AF, established that they had packaged MDMA at the accused’s direction, and that there had been cannabis at the premises.
The accused also made a phone call to CnC at 3.42pm and asked her if she was ‘nearly finito’. When she replied ‘nope’, the accused asked ‘how far?’.[366] That call evinced that the accused directed the packaging of the MDMA in time for its collection by PM.
[366] Call 117 (Exhibit P15A); P2A.
A short time later at 4.12pm, AF called the accused and asked whether he wanted her to send the ones left over. The accused asked how many there were, and AF responded by saying ‘fifty (50) and twenty-three (23)’. The accused told her to put them in as well but to mark them, which she agreed to do. That AF asked the accused what to do with the ‘left over’ showed that the accused directed the packaging of the MDMA pills.[367] Further, the MDMA pills seized at the Keswick Railway Station in the luggage of PM included two zip-lock plastic bags marked ‘56’ and ‘23’ and which contained 56 and 23 tablets respectively.[368] I do not consider the fact that there were 56 pills as opposed to 50 (as referred to by AF in the telephone call) undermined the strength of this piece of evidence. It is explained by AF simply being mistaken as to the precise number of pills. They were almost the same number, and both bags were marked in the way the accused had told AF to mark them.
[367] Call 119 (Exhibit P15A); P2A.
[368] Agreed Fact 63 (P30).
AC was observed leaving AF’s home carrying a green plastic bag. CnC was observed leaving AF’s home carrying a yellow bag and walking towards her home. The vehicle earlier driven by PM was seen outside CaC’s home. Shortly after 5pm, AC and PM are observed leaving CaC’s home. AC was wheeling a black bag. PM was also carrying a black bag. I am satisfied that they were then carrying the cannabis packaged at CaC’s Torrensville home and the MDMA packaged at AF’s home, AC having just come from AF’s premises. The bags are also consistent in appearance with those later seized from the Keswick Railway Station booked in the name of PM to travel to Perth, Western Australia, which contained the packaged cannabis and MDMA. At about 5.15pm, PM and AC travelled in the bronze four-wheel drive to the accused’s home. AC walked to the side gate. They stayed at the premises for about two minutes before leaving for the Keswick Railway Station. It was significant that before travelling to the Keswick Railway Station, AC and PM travelled first to the accused’s home which further supported the inference that the accused directed the packaging of the cannabis and MDMA for sale to DC in Western Australia.
Fourthly, the accused’s conduct after the arrest of PM was also significant. On the following day, on 15 November 2013, at 11.02am, AC called CaC, and said ‘they got him’. CaC responded ‘does Saro (the accused) know?’ and ‘I’ll ring him now to see what I have to do’. AC said: ‘let me ring him on the phone here’. CaC replied: ‘no no it’s better if I’ll ring Toto, Saro (the accused) I won’t mix up’. AC said: ‘alright’.[369] One minute later, at 11.03am, she called the accused and asked: ‘What do we have to do?’. He responded ‘clean up everything’. She agreed and said: ‘the things are at Annuzza’s (AF). What do I have here?’. He replied, ‘doesn’t matter’.[370] A short time later, at 11.09am the accused’s mother called AC. AC asked ‘What did he tell you?’ and she replied ‘said to clean up’.[371] At 11.50am, the police searched the accused’s mother’s premises at Torrensville. They noticed that the floor was damp, indicating that the house had been cleaned, as directed by the accused.
[369] Call 122 (Exhibit P15A); P2A.
[370] Call 123 (Exhibit P15A); P2A.
[371] Call 124 (Exhibit P15A); P2A.
I am satisfied on the basis of the telephone calls after the arrest of PM that AC and CaC were looking for direction from the accused, and that he gave those directions to AC and CaC was further evidence in support of the accused having earlier directed the packaging of the cannabis and MDMA, found in the luggage of PM, and of which his mother was trying to clean up any trace.
Fifthly, I have also taken into account the evidence that the accused and CnC’s had money from unidentified sources during the charged period and unexplained wealth.
Sixthly, there was evidence that the accused was engaged in an established and ongoing business of trafficking cannabis at a time proximate to Count 2. I am satisfied the intercepted telephone calls admitted for a propensity purpose on Counts 2 to 5 revealed that the accused was engaged in an established business to transport cannabis for sale in Western Australia.
I am satisfied beyond reasonable doubt on the evidence outlined above that the accused directed the packaging of the cannabis and MDMA for sale to DC in Western Australia.
As to the fourth and fifth legal elements of the offence, there was no dispute that there was 13.3 kilograms of cannabis, which was a large commercial quantity of cannabis. Nor was there any dispute that there was about six kilograms of a substance containing MDMA which was a commercial quantity of MDMA. I am satisfied beyond reasonable doubt that the accused intended to traffic in a large commercial quantity of cannabis and MDMA. Accordingly, I am satisfied the prosecution has proved beyond reasonable doubt each element of Count 4 and 5 and I find the accused guilty of each offence.
Verdicts
I find the accused guilty of Counts 1 to 5.
5
1