R v Catanzariti (No 2)

Case •

[2021] SADC 12

•

25 June 2020

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v CATANZARITI (No 2)

[2021] SADC 12

Reasons for Rulings of the Honourable Justice S David 

25 June 2020

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY

Accused charged with five counts of trafficking in a large commercial quantity of a drug (cannabis and MDMA) – discreditable conduct - admissibility of intercepted telephone calls for propensity use - to establish accused had a propensity to engage in business of trafficking in drugs – non-propensity uses of telephone calls – admissibility of ‘unexplained wealth’ – whether reasonable evidence of pre-concert between the accused and others – whether assertions made by others during telephone calls admissible under co-conspirators rule.

Controlled Substances Act 1984 (SA) ss 32(1) and 33S; Evidence Act 1929 (SA) s 34P(2)(b), referred to.
R v C, CA [2013] SASCFC 137; R v C, S [2018] SASCFC 171; Ahern v The Queen (1988) 165 CLR 87; R v Tripodi (1961) 104 CLR 1; Corak v Palmer [1982] 303 SASR 404, considered.

R v CATANZARITI (No 2)
[2021] SADC 12

Criminal Jurisdiction

  1. The accused (Saverio Catanzariti) is charged on an Information dated 12 May 2016 with five counts of Trafficking in a Large Commercial Quantity of a Controlled Drug contrary to s 32(1) of the Controlled Substances Act, 1984.

  2. The accused elected for trial by judge alone.

  3. The trial is listed to commence on 30 June 2020. 

  4. The first count relates to a shipment of 35 pounds of cannabis from South Australia to Western Australia in November 2012. The second and third counts relate to separate shipments of cannabis from South Australia to Western Australia in October 2013. The second count allegedly involved a shipment of 19 pounds of cannabis, and the third count, a shipment of 28 pounds of cannabis. The drugs the subject of the counts 1, 2 and 3 were not seized by police. The fourth and fifth counts relate to 13.3 kg of cannabis and 20,709 tablets of MDMA or ecstasy, respectively. The drugs the subject of the fourth and fifth counts were seized on 14 November 2013 as Peter Mindis, the alleged courier, boarded a train for Western Australia.

  5. In respect of all counts, the prosecution case is that the accused trafficked in the relevant drugs by taking one or more steps in the process of sale, for the purpose of sale of the relevant drug, and intending that a large commercial quantity be trafficked. The prosecution alleges the accused directed the packaging of the relevant drugs or caused the transportation of the relevant drugs, or both, to Dominic Condo in Western Australia. The prosecution further alleges that the accused committed the offences with the assistance of family members including his wife, Carolyn Catanzariti, his sister, Anna Fulco, his brother, Antonio Catanzariti and mother, Caterina Catanzariti. The accused also allegedly used associates Peter Mindis and Leah Tilley to courier the drugs. The prosecution case is that the accused was in a ‘criminal conspiracy’ with the abovenamed persons to traffic controlled drugs to Western Australia. 

  6. The prosecution case relies on 126 intercepted telephone conversations between the accused and others (‘party calls’), and between other participants in the ‘criminal conspiracy’ 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 during the period of the charged offending (a propensity use) or for other contextual purposes (non-propensity uses).

  7. The prosecution also seeks to adduce evidence of the financial position of the accused and his wife during the charged period and 6 years earlier which purports to establish that there was a large amount of cash available to the accused from unidentified sources or ‘unexplained wealth’. 

  8. According to the written opening, in addition to the intercepted telephone calls, the prosecution case relies on the evidence of a drug investigation expert, surveillance of the accused and his family/associates, the interception of drugs the subject of the fourth and fifth count, along with evidence of the search of the homes of the accused and other members of his family. 

    Discreditable conduct notices

  9. A discreditable conduct notice was filed by the prosecution and supplemented by a further notice on 11 May 2016. By those notices, the prosecution seeks to adduce evidence of the accused’s discreditable conduct in trafficking drugs as evidenced by the intercepted telephone calls (set out in their Annexure A). The detail of the telephone calls the prosecution sought to adduce were also set out in a chart[1], telephone intercept summary[2] and written narrative of ‘uncharged acts’.[3] The evidence is sought to be adduced under s 34P(2)(b) of the Evidence Act 1929 on all counts to prove the accused had a propensity to engage in the business of trafficking in controlled drugs.

    [1]     VDP1.

    [2]     VDP2.

    [3]     VDP3.

  10. The prosecution also seeks to adduce evidence that the accused had a propensity to engage in the business of trafficking in controlled drugs by leading evidence from Ms Christine Evangelou, a forensic accountant, as to the accused’s ‘unexplained wealth’ during the charged period of the offending. Ms Evangelou provided two declarations to the court[4] and gave evidence during a voir dire hearing.

    [4]     VDP6: declaration of Christina Evangelou dated 26 April 2016 and annexures, VDP8 revised schedule of Christina Evangelou.

    Notices to object to proposed discreditable conduct evidence

  11. Notices of objection to the proposed discreditable conduct evidence were filed on 11 September 2015 and 28 August 2017. There were also two Rule 49 applications before the court, the first of which was filed on 30 April 2020, of which only grounds 2.2 (referable to call 108) and 4 were pursued. A second Rule 49 notice as filed on 4 May 2020. Senior counsel for the accused also provided a written outline entitled ‘remaining voir dire issues’ on 1 May 2020.

  12. The combined effect of the abovementioned notices, as supplemented by oral and written argument, is that the following evidentiary objections were raised on behalf of the accused which require a ruling at this stage of proceedings.

    1.The admissibility of the intercepted telephone conversations pursuant to s 34P(2)(b) of the Evidence Act 1929 to prove that the accused had a propensity to engage in the business of trafficking controlled drugs.

    2.That calls 8, 10, 17, 20, 22, 94 and 120 be excluded as being irrelevant or more prejudicial than probative.

    3.That call 108 be excluded from evidence for breach of s 7(1) of the Telecommunications (Interception) Act 1979 (Cth) and s 4 of the Listening and Surveillance Act 1972 (SA) (then in operation).

    4.The admissibility of intercepted telephone calls to which the accused was not a party, or, during which assertions were made by another person which were not adopted by the accused, or were not within his knowledge, for a testimonial purpose pursuant to the ‘co-conspirators rule’.

    5.The admissibility of the ‘unexplained wealth’ of the accused and his wife pursuant to s 34P(2)(b) of the Evidence Act 1929 to prove that the accused had a propensity to engage in the business of trafficking controlled drugs.

    6.An application for separate trials in circumstances where the intercepted telephone calls relevant to one count are ruled not cross-admissible for propensity purposes in respect of another count.

  13. My rulings follow in respect of those applications.

    Intercepted telephone calls – propensity use / irrelevance / more prejudicial than probative

  14. The 126 intercepted telephone calls were divided by the prosecution into what was referred to as 9 chapters. The telephone calls numbered 1-4 were referred to as chapter 1 and are directly relevant to the first count which was allegedly committed between 1 November 2012 and 20 November 2012. Calls 5 to 17 were referred to as chapter 2 and relate to uncharged conduct allegedly committed by the accused over a period from November 2012 to January 2013. Calls 18-23 were referred to as chapter 3 and relate to Dominic Condo’s arrest. Calls 24-50 were referred to as chapter 4 and relate to alleged uncharged conduct by the accused after Dominic Condo’s arrest. Calls 51-62 were referred to as chapter 5 and are for the most part directly relevant to the second count allegedly committed by the accused between 1 October 2013 and 6 October 2013. Calls 64-70 were referred to as chapter 6 and are directly relevant to the third count allegedly committed by the accused between 8 October 2013 and 16 October 2013. Calls 71-89 were referred to as chapter 7 and relate to uncharged acts allegedly committed by the accused in October 2013. Calls 90-100 were referred to as chapter 8 and relate to further uncharged acts allegedly committed by the accused in late October/early November. Finally, calls 101-127 were referred to as chapter 9 and relate directly to the fourth and fifth counts allegedly committed by the accused between 12 November 2013 and 15 November 2013, or to post offence conduct by the accused and his associates.

  15. In considering the admissibility of the challenged telephone calls, I proceed on the basis that the test to be satisfied is the same irrespective of whether the trial is before a jury or a judge sitting alone.[5]

    [5]     R v C, CA [2013] SASCFC 137 (Kourakis CJ, Anderson J concurring) at [82].

    Chapters 1-3: calls 1-23

  16. Putting aside calls numbered 8, 10, 17, 20, 22, to which an objection was taken on the basis of irrelevance, or as more prejudicial than probative, there was no dispute as to the admissibility of the calls in the first three chapters as being directly relevant to the first count, or as admissible for a non-propensity purpose on the first count. I am satisfied of their admissibility for a non-propensity purpose in that the probative value of the evidence of each call numbered from 5 to 23 substantially outweighs any prejudicial effect it may have on the accused, except calls 8 and 22 which I exclude as being irrelevant and primarily related to horse racing interests or more prejudicial than probative.

  17. As to the question of a propensity use of any of the calls, I am satisfied that each the calls numbered 1- 7, 17-21 and 23, looked at individually and in the context of the other calls, are admissible to establish that the accused had a propensity to engage in the ongoing business of trafficking controlled drugs. I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that the evidence has strong probative value having regard to the issues at trial namely whether the accused took part in the sale of drugs, the subject of the first count.

  18. However, I do not consider any of the intercepted calls constituting the first three chapters are admissible to prove that the accused was involved in the business of trafficking drugs as relevant to counts 2 to 5. The first count is particularised as having occurred in early November 2012. There is an intervening period of almost 5 months between call 23 (18/1/13) and call 24 (15/6/13). During that period, there is no evidence of any controlled drug activity by the accused. Counts 2 to 5 are alleged to have been committed in October and November 2013, almost 12 months after the first count. Further, the first count on the evidence allegedly involved the accused, Dominic Condo and Peter Mindis. The latter four counts involve numerous other participants. On the prosecution case, the change in the ‘business structure’ of the accused’s alleged drug trafficking is explained by the arrest of Dominic Condo in January 2013, and the accused’s arrest in April 2013, and the accused’s subsequent and necessary caution in avoiding any direct contact with Dominic Condo and their drug couriers. Notwithstanding those matters, and given the significant intervening period from January 2013 to June 2013, during which there is no evidence of any continued drug trafficking by the accused, I am not satisfied that any of the calls in the first three chapters are admissible as evidence of accused’s propensity to engage in the business of trafficking drugs as relevant to prove counts 2-5.  I do not consider there to be sufficient evidence of a continuity of participation by the accused in the business of trafficking controlled drugs such as to find the evidence of calls 1-23 to have strong probative value on counts 2-5.

  19. However, calls 1-23 (excluding 8 and 22) are admissible for the non-propensity purposes set out in the prosecution outline at paragraph 12 on all counts (excluding for the purpose put at paragraph 12.8 which is in effect a propensity use).

  20. I consider call 10 (to which a specific objection to admissibility was taken) to be more probative than prejudicial and that the permissible use can be kept sufficiently separate and distinct from the impermissible use such as to remove any appreciable risk of the evidence being used for that purpose.

  21. As to the remaining calls (numbered 24-127), except where an objection is taken to a specific call on the basis that it is irrelevant or more prejudicial than probative, the admissibility of the calls for non-propensity purposes was not challenged, and I would have found each call admissible for that purpose. The following rulings address the admissibility of the remaining calls for a propensity purpose in respect of counts 2-5, except in respect of calls 94, 108 and 120 where a specific and further objection was taken to the admissibility of the call.

    Chapter 4: calls 24-50

  22. Calls 24-50 relate to the conduct of the accused and his associates after Dominic Condo’s arrest on 11 January 2013. Calls 28, 30, 36-37, 39 relate to the accused or his associates obtaining new telephone services from which the prosecution says it can be inferred that the accused is trying to avoid police detection as his business is an illegal one. To the extent that those intercepted phone calls reveal that the accused had a propensity to engage in the business of trafficking controlled drugs, I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5, namely whether the prosecution has proved the accused took part in the sale of drugs. 

  23. I am also satisfied that calls 32 to 35 and 38, which allegedly relate to payments for an uncharged drug transaction, are admissible to prove that the accused had a propensity to engage in the business of trafficking drugs. I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5. 

  24. I am also satisfied that calls 43 to 48, which allegedly relate to the movements and activities of Peter Mindis, are admissible to prove that the accused had a propensity to engage in the business of trafficking drugs. I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5. 

  25. I consider the evidence of the accused’s propensity to engage in the business of trafficking controlled drugs as revealed by the abovementioned calls from June 2013 are sufficiently proximate to the alleged offending in October and November 2013, to be capable of establishing that the accused was engaged in the continuing business of trafficking drugs leading up to, and during the charged period in October and November 2013, and to have strong probative value to the issues at trial in respect of counts 2-5. 

  26. I do not consider that calls 24-27, 29, 31, 40-42 and 49-50, looked at in isolation or in the context of other calls, are capable of showing that the accused had a propensity to engage in the business of trafficking in drugs. However, those calls are admissible for non-propensity purposes as articulated in the prosecution outline.

    Chapter 5: calls 51-62

  27. Calls 51-62 relate to the second count alleged to have been committed by the accused between 1 October 2013 and 6 October 2013. Those calls are directly relevant to the second count and do not engage the discreditable conduct provisions.

    Chapter 6: calls 64-70

  28. Calls 64-70 relate largely to the third count. As to call 69, the contents of that call are admissible for a non-propensity purpose to show that the accused did have access to a TAB account into which he instructed another, via a third party, to place a large sum of cash, which is relevant to explain some aspects of the forensic accounting evidence. To the extent that the evidence is capable of showing the accused had a propensity to engage in an ongoing business of trafficking controlled drugs, I am satisfied that the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused, and that the evidence has strong probative value to the issues at trial on counts 2 to 5. 

    Chapter 7: calls 71-89

  29. On the prosecution case, calls 71-77 relate to uncharged conduct by the accused in mid to late October 2013. The uncharged conduct allegedly involves Peter Mindis travelling from Perth to Adelaide after the third count, cash payments by Dominic Condo to the accused for previous drug transactions, and a recent delivery of cannabis to the accused. I am satisfied that each of the calls numbered 71-77, looked at separately, and in the context of the other calls, is admissible to prove the accused had a propensity to engage in the business of trafficking controlled drugs as relevant to counts 2 to 5. I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that the evidence has strong probative value having regard to the issues at trial on counts 2 to 5. 

  30. Calls 78-84 are admissible for a non-propensity purpose to show the accused and his wife were obtaining a new telephone service from which the prosecution alleges it can be inferred that the accused is trying to avoid police detection as his business is an illegal one. To the extent that those intercepted phone calls allegedly show that the accused has a propensity to engage in the business of trafficking in controlled drugs, I am satisfied that the probative value of the evidence of each call looked at in isolation, and in the context of the other calls, substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5. 

  31. On the prosecution case, calls 85-89 relate to payments by Dominic Condo to the accused (via Peter Mindis) for past drug sales. I am satisfied those calls are admissible to prove that the accused had a propensity to engage in the business of trafficking drugs. I am satisfied that the probative value of the evidence of each of these calls substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5. 

    Chapter 8: calls 90-100

  32. Calls 90-100 relate to further uncharged acts by the accused in late October/early November 2013.

  1. Calls 90-93 are admissible for non-propensity purposes as set out in the prosecution outline, but not a propensity use.

  2. I will deal with call 94 when addressing the co-conspirators rule.

  3. On the prosecution case, calls 95–100 relate to the movements of Peter Mindis in Perth, on the prosecution case as a courier of drugs for the accused, and his return to Adelaide. The calls are admissible to prove that the accused had a propensity to engage in the business of trafficking controlled drugs. I am satisfied that the probative value of the evidence of each call substantially outweighs any prejudicial effect it may have on the accused, and that each call has strong probative value having regard to the issues at trial on counts 2 to 5. 

    Chapter 9: calls 101-127

  4. Calls 101-127 for the most part relate directly to the fourth and fifth counts. I will deal with the challenge to the admissibility of call 108 separately. 

  5. On the prosecution case, call 120 is relevant to show the accused is obtaining a new telephone service in another person’s name from which the prosecution submits it can be inferred that the accused is trying to avoid police detection as his business is an illegal one. I consider the call is relevant for that non-propensity use and the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused. To the extent that call 120 reveals that the accused is involved in the business of trafficking controlled drugs and has a propensity to traffic drugs, I am further satisfied that the evidence has strong probative value having regard to the issue at trial on counts 2 to 5.

    Call 108

  6. I exclude call 108. I will publish separate reasons for my ruling.

    Co-conspirators rule

  7. The prosecution sought to rely on the statements of other persons made during the intercepted telephone calls, either in the absence of the accused, or in circumstances where the assertions were not adopted by the accused, or not within his knowledge, for a testimonial use pursuant to the ‘co-conspirators rule’.

  8. The co-conspirators rule is a rule of evidence which allows evidence of words or conduct by other parties to an unlawful enterprise, if said or done in furtherance of the common unlawful purpose, to be used as evidence against all parties. The rule is applicable on charges of conspiracy and substantive offences and has been held to have not been abrogated by s 33S of the Controlled Substances Act 1984 so is applicable in proof of the charged offences.[6]

    [6]     R v C, S [2018] SASCFC 171.

  9. In Ahern v The Queen[7] the High Court explained the rule in this way:

    ... when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others.

    [7] (1988) 165 CLR 87.

  10. For the statements made by one person to be admissible against another person who is absent or who is not the maker of the assertion there must be some reasonable evidence of pre-concert between the parties. As was articulated by Dixon CJ, Fullagher and Windeyer JJ in R v Tripodi:[8]

    When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others.

    [8] (1961) 104 CLR 1 at 7.

  11. However, the evidence of ‘pre-concert’ does not necessarily need to occur at a time prior to the assertions relied upon having been made for those assertions to be admissible. As King CJ said in Corak v Palmer:[9]

    The real possibility of the common design or purpose which in appropriate cases is a condition precedent to admission of the evidence may, however, be indicated by evidence of acts or statements done or made by the accused in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place.

    [9] [1982] 303 SASR 404 at 419.

  12. At this stage of the proceedings, it is only necessary to decide whether there is ‘reasonable evidence’ of pre-concert or a common criminal purpose between the accused and the maker of the assertions to commit the charged offences. Whether a statement by an alleged co-conspirator is made in furtherance of that common purpose is ultimately a matter for the jury or, here, the trier of fact.

  13. As to the assertions made by Dominic Condo made during calls numbered 1, 2 and 4 relied upon for a testimonial use, I am satisfied there is reasonable evidence of pre-concert between the accused and Dominic Condo to commit count 1 at the time of each challenged assertion. That evidence of pre-concert is found in the topics discussed between the accused and Dominic Condo in the unchallenged parts of the first four phone calls, and those unchallenged parts of the intercepted telephone conversations in calls 1-23 which record the accused giving directions to Condo and receiving reports back from him. It is also found in the familiarity used between the parties during the first four intercepted telephone calls which suggest a long-standing association between the two men.

  14. As to the assertions made by Antonio Catanzariti 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 am satisfied there is reasonable evidence of pre-concert between the accused and Antonio Catanzariti 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. That evidence is found in the other unchallenged parts of those intercepted telephone conversations in which the challenged assertions are made, and the unchallenged parts of those intercepted telephone calls which predate counts 2 and 3 (calls 24 to 50) which record the accused giving directions to Antonio Catanzariti and receiving reports back from Antonio Catanzariti on the carrying out of his instructions. 

  15. As to the assertions made by Caterina Catanzariti (the accused’s mother) in call numbered 57 made on 3 October 2013 (relevant to count 2), I am satisfied there is reasonable evidence of pre-concert between the accused and his mother to commit count 2 at the time of the challenged assertion. That evidence is found in the other unchallenged parts of the intercepted telephone conversations in which the challenged assertion is made, and those intercepted telephone calls which predate count 2 which record the accused giving directions to his mother and receiving reports back from his mother on the carrying out of his instructions.

  16. As to call 125 made on 15 November 2013 (and relevant to counts 4 and 5), I am satisfied there is reasonable evidence of pre-concert between the accused and his mother to commit counts 4 and 5 at the time the assertion. That evidence is found in the other unchallenged parts of earlier telephone conversations involving Caterina Catanzariti which record the accused giving directions to his mother, and receiving reports back from her on the carrying out of the accused’s instructions. It is also found in the evidence of cannabis remnants, a vacuum sealing machine and an industrial salad drier seized by police from the home of Caterina Catanzariti on 15 November 2013. 

  17. As to the assertions made by Anna Fulco (the accused’s sister) in call numbered 119 made on 14 November 2013 (relevant to counts 4 and 5), I am satisfied there is reasonable evidence of pre-concert between the accused and his sister to commit counts 4 and 5 at the time of the challenged assertion. That evidence is found in the other unchallenged parts of earlier intercepted telephone calls which record the accused giving directions to his sister and receiving reports back from his sister on the carrying out of his instructions. It is also found in the evidence of items seized from the home address of Anna Fulco on 15 November 2013. Those items included electronic scales, numerous press seal bags, gloves containing the remnants of MDMA and a heat sealing machine. There is evidence that the heat sealing machine seized from Anna Fulco’s address was used to seal the bags in which the cannabis the subject of count 4 was packaged.  

  18. The prosecution also sought to lead assertions made by others in calls 36, 71, 73, 84, 86, 93 and 94 for a testimonial purpose as admissible against the accused. None of the assertions relate directly to a charged offence but rather to establish circumstantial evidence in support of the charged offences or to show that the accused had a propensity to engage in the business of trafficking in controlled drugs.  That raises the question of whether in circumstances where there is reasonable evidence of a common purpose between the participants to sell controlled drugs to a person in Western Australia, of which the charged acts are examples, the co-conspirators rule applies. In the absence of any clear authority permitting the use of the co-conspirators rule to prove an uncharged act or a piece of circumstantial evidence which is in turn relevant to a charged offence, I am not prepared to arguably extend the reach of the evidentiary co-conspirators rule to do so.

  19. However, I am satisfied that calls 36, 71, 73, 84, 93 and 86 are relevant and admissible for non-testimonial purposes.

  20. Without a testimonial use, I consider call 94 to be of no probative value to the case against the accused and I exclude that call.

    Unexplained wealth

  21. The prosecution sought to adduce evidence of the ‘unexplained wealth’ of the accused and his wife to establish that the accused had a propensity to engage in the business of trafficking drugs as relevant to the charged offences. Ms Evangelou gave evidence that over a 7-year period leading up to the accused’s arrest in November 2013, the accused and his wife had available to them $3,307,475 of which $830,242 cash was from unidentified sources. During the same period neither the accused or his wife apparently earned income from paid employment but received government pensions totalling $335,730. During the period between 1 November 2012 and 30 November 2013 (the charged period), the total funds available to the accused and his wife were $480,070 of which $60,856 cash was from unidentified sources.

  22. Senior counsel for the accused contended that the evidence, whilst relevant, did not have a strong probative value because on the prosecution case the accused was involved in an extensive and ongoing drug trafficking business from November 2012 to November 2013, and the profit of that business would have far exceeded that postulated unexplained wealth. Notwithstanding that argument, the forensic accounting evidence shows that the accused and his wife had accrued a significant amount of unexplained wealth from November 2012 to November 2013, capable of founding an inference (in conjunction with other evidence) that the accused was engaged in the business of drug trafficking at the time of the charged offences. I am satisfied that the probative value of the evidence of substantially outweighs any prejudicial effect it may have on the accused, and that the evidence has strong probative value having regard to the issues at trial on all counts. 

  23. To the extent that the prosecution seeks to adduce evidence of Ms Evangelou’s analysis of the accused’s financial position over the 6-year period preceding the charged offences, the evidence is not admissible for a propensity purpose. There is no evidence of any uncharged offending during those preceding years. That evidence is only admissible to explain the methodology for the calculations made of the accused’s financial position during the confined period from 1 November 2012 to 30 November 2013.  

    Application for separate trials

  24. I will rule on the issue of separate trials raised in the rule 49 notices after hearing any further oral or written argument in light of the above rulings.

Call No Date Time CSN Alleged M1 Alleged M2, M3 Alleged F1, F2, F3

Ct
UA

 Co-conspirators rule Ruling
Discreditable conduct
1.     12/11/12 17:27 1144 SC Condo 1
UA 		Party call
Reasonable evidence of pre-concert between the accused and Condo.
Admissible on count 1.

Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.
2.     16/11/12 17:25 1196 SC Condo 1 Party call
Reasonable evidence of pre-concert between the accused and Condo.
Admissible on count 1.

Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.
3.     19/11/12 11:49 1096 SC Condo Unknown 1 Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.
4.     20/11/12 12:29 2 SC Condo 1
UA

Party call
Reasonable evidence of pre-concert between the accused and Condo.
Admissible on count 1.

Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.
5.     20/11/12 12:43 3 SC Condo UA

Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.

6.     26/11/12 21:50 100001 SC Condo UA

Admissible for a propensity purpose as relevant to the first count only and non-propensity purposes as to all counts.
7.     11/12/12 20:38 16 SC Mindis UA

Admissible for non-propensity purposes for all counts
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to the first count only.
8.     27/12/12 10:41 126 Katsambas SC

Excluded.

9.     28/12/12 06:21 169 Mindis SC

Admissible for non-propensity purposes on all counts.
Not admissible for a propensity purpose.

10.      29/12/12 17:58 160 SC Katsambas Admissible for non-propensity purposes on all counts.
Not admissible for a propensity purpose.
11.      30/12/12 15:16 166 SC Tilley UA

Calls 11-13:
Admissible for non-propensity purposes for all counts.
Not admissible for a propensity purpose as more consistent with the accused supplying an illicit drug to Tilley.
12.      31/12/12 10:22 180 SC Tilley

UA

 As above
13.      31/12/12 10:24 182 SC Tilley UA

As above
14.      3/1/13 08:02 186 Mindis Carol C UA

Calls 14-16:
Admissible for a non-propensity purposes on all counts.
Not admissible for a propensity purpose.
15.      6/1/13 23:14 206 Mindis Condo UA As above
16.      7/1/13 03:30 207 Swan Taxis Mindis UA As above
17.      8/1/13 07:57 314 SC Allen UA

Admissible for a propensity purpose as relevant to the first count only.
18.      11/1/13 13:45 411 Mindis SC Unknown UA

Admissible for a propensity purpose as relevant to the first count only.
Admissible for a non-propensity purpose on all counts.

19.      12/1/13 01:19 420 SC Unknown

Calls 19-21:
Admissible for non-propensity purposes on all counts.
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to the first count only.
20.      12/1/13 14:01 440 SC Katsambas As above
21.      13/1/13 11:24 451 SC Tilley As above
22.      16/1/13 07:14 501 Katsambas SC Excluded
23.      18/1/13 09:28 276 Antonio C Mindis

Admissible for non-propensity purposes on all counts.  To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to the first count only.
24.      15/6/13 13:21 1219 Antonio C F1: A Fulco
F2: Caterina C

Relevant for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.
25.      18/6/13 13:31 1371 SC A Fulco

Relevant for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.
26.      19/6/13 16:14 1434 Antonio C SC

Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes. 

27.      19/6/13 17:42 1437 Condo Carolyn C

Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.

28.      21/6/13 13:52 1536 SC Antonio C Admissible for non-propensity purpose on counts 2-5.
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
29.      24/6/13 13:47 1679 F1: A Fulco
F2: Carolyn C 		Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.
30.      25/6/13 14:53 1718 Antonio C Carolyn C

As above for 28
31.      25/6/13 16:28 1735 Condo Carolyn C

Admissible for non-propensity purposes on counts 2-5. 
Not admissible for propensity purposes.

32.      25/6/13 17:47 1738 SC Antonio C Caterina C UA

Calls 32-35:
Admissible for non-propensity purposes on counts 2-5.
Admissible for a propensity purpose as relevant to counts 2-5.

33.      25/6/13 17:53 1739 SC Antonio C UA As above
34.      25/6/13 18:07 1742 Condo Carolyn C UA As above
35.      25/6/13 18:46 1743 SC Antonio C UA As above
36.      27/6/13 14:03 1808 Antonio C SC Party call
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for a non-testimonial purpose. 		Calls 36-37:
Admissible for a non-propensity purpose on counts 2-5.
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
37.      27/6/13 17:42 1821 Condo Carolyn C As above
38.      1/7/13 17:30 2080 Condo SC UA

Admissible for a propensity purpose as relevant to counts 2-5.

39.      5/7/13 16:37 2314 Antonio C SC Admissible for a non-propensity purpose on counts 2-5.
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
40.      23/7/13 17:54 3217 Antonio C SC Caterina C UA

Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes. 

41.      25/7/13 18:46 3342 Unknown Carolyn C

Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.  

42.      7/8/13 19:19 4285 Condo Carolyn C UA

Admissible for non-propensity purposes on counts 2-5.
Not admissible for propensity purposes.
43.      14/8/13 19:22 4624 SC Antonio C Caterina C Calls 43-48:
Admissible for non-propensity purposes on counts 2-5. 
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
44.      18/8/13 19:14 4789 SC Antonio C As above
45.      20/8/13 15:10 4875 Antonio C SC As above
46.      20/8/13 15:47 4878 Antonio C SC As above
47.      27/9/13 16:37 61 Antonio C Mindis UA As above
48.      27/9/13 16:39 236 SC Antonio C UA As above
49.      28/9/13 11:35 310 Antonio C SC UA Admissible for a non-propensity purpose on counts 2-5.
Not admissible for propensity purposes.
50.      1/10/13 13:46 597 SC A Fulco Admissible for a non-propensity purpose on counts 2-5.
Not admissible for propensity purposes. 
51.      2/10/13 18:52 683 SC Antonio C 2

Party call
Reasonable evidence of pre-concert between the accused and Antonio C.
Admissible for a testimonial purpose.

 N/A
52.      2/10/13 20:18 691 Antonio C SC Unknown 2

Party call
Reasonable evidence of pre-concert between the accused and Antonio C.
Admissible for a testimonial purpose.

 N/A
53.      3/10/13 11:11 721 Mindis SC 2 N/A
54.      3/10/13 15:10 737 Unknown SC 2 N/A
55.      3/10/13 15:18 740 SC Antonio C Caterina C 2 Party call
Reasonable evidence of pre-concert between the accused and Antonio C.
Admissible for a testimonial purpose. 		N/A
56.      3/10/13 15:34 745 SC Caterina C 2 N/A
57.      3/10/13 16:14 748 SC Caterina C 2 Party call
Reasonable evidence of pre-concert between the accused and Caterina C.
Admissible for a testimonial purpose. 		N/A
58.      3/10/13 18:02 753 SC Caterina C 2 N/A
59.      5/10/13 12:02 156 Mindis 2 N/A
60.      5/10/13 12:26 161 Mindis Antonio C 2 N/A
61.      5/10/13 12:27 892 Antonio C SC 2 N/A
62.      5/10/13 13:16 163 Mindis M2: Antonio C
M3: SC 		2 N/A
63.     
64.      9/10/13 09:12 1138 SC Antonio C 3 Party call
Reasonable evidence of pre-concert between the accused and Antonio C.
Admissible for a testimonial purpose. 		N/A
65.      9/10/13 15:05 212 Mindis Antonio C 3 Non-party call
Reasonable evidence of pre-concert between the accused and Antonio C. Admissible for a testimonial purpose. 		N/A
66.      9/10/13 21:07 1172 Antonio C SC 3 Party call
Reasonable evidence of pre-concert between the accused and Antonio C.  Admissible for a testimonial purpose. 		N/A
67.      12/10/13 12:32 241 Mindis Antonio C 3 Non-party call
Reasonable evidence of pre-concert between the accused and Antonio C. 
Admissible for a testimonial purpose. 		N/A
68.      12/10/13 12:34 1260 SC Antonio C 3 N/A
69.      12/10/13 12:41 1261 Covino SC 3
UA 		The reference to the accused asking for money to be paid into a TAB account is admissible for a non-propensity purpose relevant to counts 2-5.
To the extent that the phone calls reveal that the accused engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
70.      12/10/13 13:36 242 Antonio C Mindis 3

N/A
71.      15/10/13 09:02 261 Antonio C Mindis Non-party call
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for non-testimonial purposes,

Calls 71-77, 78-84:
Admissible for non-propensity purposes on counts 2-5.
Admissible for a propensity purpose to show the accused had a propensity to engage in the ongoing business of trafficking controlled drugs as relevant to counts 2-5.

72.      15/10/13 12:42 270 Mindis Antonio C As above
73.      16/10/13 14:33 1488 SC Antonio C UA Party call
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for a non-testimonial purpose. 		As above
74.      17/10/13 12:43 1540 Mindis SC Carolyn C As above
75.      19/10/13 09:57 1613 Antonio C SC As above
76.      19/10/13 12:36 307 Mindis As above
77.      19/10/13 12:37 310 Mindis Antonio C UA As above
78.      20/10/13 14:13 1701 SC Carolyn C As above
79.      21/10/13 14:12 317 Mindis Antonio C As above
80.      21/10/13 14:33 1756 SC Antonio C As above
81.      21/10/13 17:38 318 Antonio C Mindis As above
82.      21/10/13 17:39 1780 Antonio C SC Unknown As above
83.      25/10/13 17:09 1981 Antonio C SC UA As above
84.      25/10/13 18:07 368 Mindis Antonio C UA Non-party call
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for a non-testimonial purpose. 		As above
85.      28/10/13 13:30 2119 Antonio C SC

Calls 85-89:
Admissible for a propensity purpose to show the accused had a propensity to engage in the ongoing business of trafficking controlled drugs as relevant to counts 2-5. 
Admissible for non-propensity purposes as relevant to counts 2-5. 

86.      28/10/13 13:38 377 Mindis Antonio C UA Non-party call
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for a non-testimonial purpose. 		As above
87.      28/10/13 18:02 378 Antonio C Mindis UA As above
88.      28/10/13 18:10 381 Antonio C M2: Mindis
M3: SC 		Carolyn C UA As above
89.      28/10/13 18:15 2136 SC Mindis UA As above
90.      30/10/13 09:45 403 Antonio C Mindis

Calls 90-92:
Not admissible for a propensity purpose.   Admissible for non-propensity purposes on counts 2-5.

91.      30/10/13 13:48 412 Mindis As above
92.      30/10/13 13:51 414 Mindis Antonio C As above
93.      30/10/13 16:36 2241 Antonio C F1: Unknown
F2: Carolyn C 		UA Non-party call.
Not admissible for a testimonial purpose under the co-conspirators rule.
Admissible for a non-testimonial purpose.

Not admissible for a propensity purpose.   Admissible for non-propensity purposes on counts 2-5.

94.      31/10/13 11:04 2292 Papioannou Carolyn C

Non-party call.
Not admissible for a testimonial purpose under the co-conspirators rule.

 Excluded
95.      2/11/13 09:05 432 Antonio C

Calls 95-100:
Admissible for non-propensity purposes on counts 2-5. 
To the extent that the phone calls reveal that the accused had engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
96.      2/11/13 13:48 433 Antonio C Mindis UA As above
97.      2/11/13 14:51 434 Antonio C Mindis UA As above
98.      2/11/13 19:50 435 Antonio C Mindis As above
99.      3/11/13 17:16 438 Mindis Antonio C As above
100.   6/11/13 17:18 475 Antonio C Mindis As above
101.   11/11/13 16:30 2963 Antonio C SC N/A
102.   12/11/13 12:50 535 Mindis Antonio C N/A
103.   12/11/13 15:17 3022 SC Antonio C N/A
104.   12/11/13 15:18 538 Antonio C Mindis N/A
105.   12/11/13 18:26 539 Mindis Antonio C 4, 5 N/A
106.   12/11/13 20:05 3040 SC Caterina C 4, 5 N/A
107.   13/11/13 11:04 554 Mindis Antonio C 4, 5 N/A
108.   13/11/13 16:39 3106 SC Unknown 4, 5
UA 		Excluded - see separate ruling
109.   13/11/13 18:07 3112 Unknown M2: SC
M3: Antonio C 		Unknown 4, 5 N/A
110.   13/11/13 20:18 3131 SC Caterina C 4, 5 N/A
111.   13/11/13 20:38 3136 SC Carolyn C 4, 5 N/A
112.   13/11/13 21:01 562 Mindis Antonio C 4, 5 N/A
113.   14/11/13 11:13 3148 SC Carolyn C 4, 5 N/A
114.   14/11/13 12:50 3150 SC Caterina C 4, 5 N/A
115.   14/11/13 14:30 3153 Antonio C SC 4, 5 N/A
116.   14/11/13 15:42 3154 Antonio C Carolyn C 4, 5 N/A
117.   14/11/13 15:42 3157 SC Carolyn C 4, 5 N/A
118.   14/11/13 15:59 3159 SC F1: Carolyn C
F2: Unknown 		4, 5 N/A
119.   14/11/13 16:12 3160 SC A Fulco 4, 5 Party call
Reasonable evidence of pre-concert between the accused and Anne Fulco.
Admissible for a testimonial purpose.
120.   14/11/13 16:34 3161 J Carbone SC 4, 5 Relevant for a non-propensity purpose on counts 2-5. 
To the extent that the phone call reveal that the accused had engaged in the ongoing business of trafficking controlled drugs admissible for a propensity purpose as relevant to counts 2-5.
121.   14/11/13 20:17 3173 SC F1: Unknown
F2: Caterina C 		4, 5

Admissible for a non-propensity purpose on counts 4,5.

122.   15/11/13 11:02 583 Antonio C Caterina C 4, 5

N/A
123.   15/11/13 11:03 3185 SC Caterina C 4, 5 N/A
124.   15/11/13 11:09 584 Antonio C Caterina C 4, 5 N/A
125.   15/11/13 11:24 3186 SC Caterina C 4, 5 Party call
Reasonable evidence of pre-concert between the accused and Caterina C.
Admissible for a testimonial purpose 		N/A
126.   15/11/13 11:26 3187 SC Caterina C N/A
127.   15/11/13 14:10 3237 F1: A Fulco
F2: Carolyn C 		N/A
Most Recent Citation
Cases Citing This Decision

1

Catanzariti v The Queen [2021] SASCA 110
Cases Cited

3

Statutory Material Cited

1

R v C, CA [2013] SASCFC 137
Ahern v The Queen [1988] HCA 39
Osland v The Queen [1998] HCA 75