R v Cerullo - [2003] NSWCCA 201

CITATION: R v CERULLO AND SOUKOULIS [2003] NSWCCA 201

HEARING DATE(S): 27 March 2003

JUDGMENT DATE:
31 July 2003

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Buddin J at 81

DECISION: In each case; i) Dismiss the appeal against conviction; ii) Grant leave to appeal against sentence ; iii) Dismiss the appeal against sentence

CATCHWORDS: Criminal law - Customs Act s233B - knowingly concerned in the importation of(not less than a traffickable quantity) of cocaine - sentence of 12 yrs imprisonment not excessive - Evidence - sufficient nexus to make it more than propensity evidence - errors by counsel - opinion evidence as to competence unlikely to be admissible

PARTIES :
Regina
Toni Cerullo
Dimitrios Soukoulis

FILE NUMBER(S): CCA 60059/02; 60060/02

COUNSEL: Crown: GJ Bellew
Appellant: BKH Donovan QC

SOLICITORS: Crown: Commonwealth Director of Pubic Prosecutions
Appellant: Tully & Co

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S):

LOWER COURT
JUDICIAL OFFICER : Hock DCJ

60059/02
60060/02

SPIGELMAN CJ
HULME J
BUDDIN J

R v Toni CERULLO
R v Dimitrios (Jim) SOUKOULIS

Judgment

1 SPIGELMAN CJ: I have read the judgments of both Hulme J and Buddin J in draft. I agree with Buddin J on Ground 2. Otherwise, I agree with Hulme J and with Buddin J’s additional observations on Ground 10. I agree with the orders proposed by Hulme J.

2 HULME J : On 26 September 2001, after a trial lasting a number of days, the abovenamed Appellants were convicted of being, between about 19 November 1999 and about 23 December 1999, knowingly concerned in the importation into Australia of prohibited imports, namely narcotic goods consisting of a quantity of cocaine being not less than the trafficable quantity thereof.

3 On 8 February 2002 Judge Hock sentenced each of the Appellants to imprisonment for 12 years including a non-parole period of 8 years.

1. The jury’s verdict was unreasonable.

2. Her Honour erred in admitting Exhibit J on the trial being a telephone call between the accused Soukoulis and a person named Alex on 25 November 1999 at 12:16:13 hours.

(b) not, when directing the Jury, withdrawing from their consideration

evidence of the electronic transfer of Australian $28,885.40 by Eleftheria Pappas in Adelaide to Gigel Bosca in Germany on 16 December 1999.

3A Her Honour erred in not, when directing the Jury, withdrawing from their consideration, evidence of the electronic transfer of Australian $18,743.00 by Eleftheria Pappas in Adelaide to Toni Raffella Racerullo in Germany on 16 December 1999.

4. Her Honour erred in directing the jury as to a not guilty verdict.

5. Her Honour erred in directing the jury as to an element of the charge, namely being knowingly concerned in the importation of prohibited goods.

6. Her Honour erred…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Cerullo

Details

AGLC: R v Cerullo [2003] NSWCCA 201
Case: [2003] NSWCCA 201
Decision Date: 31 July 2003

CaseChat Overview and Summary

The case of R v Cerullo involved the appellant, who was convicted of being knowingly concerned in the importation of cocaine in a quantity that was more than traffickable. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the sentence of 12 years imprisonment handed down to the appellant was excessive, and whether the evidence presented was sufficient to establish the required nexus for the conviction. The court was also tasked with considering the impact of errors made by counsel during the trial, as well as the admissibility of opinion evidence regarding the appellant's competence.

The court found that the sentence was not excessive given the nature and circumstances of the offence. It determined that there was a sufficient nexus between the appellant's actions and the importation of the cocaine, which meant the evidence presented was not merely propensity evidence. The court held that the trial judge's decision to exclude opinion evidence about the appellant's competence was appropriate, as such evidence was unlikely to be admissible. Despite acknowledging errors made by counsel, the court found these did not impact the overall outcome of the trial.

In conclusion, the High Court upheld the conviction and sentence of the appellant. The court emphasised the importance of the sufficient nexus established by the evidence, which distinguished the case from mere propensity evidence. It also confirmed that opinion evidence on the appellant's competence would not have been admissible, and the errors made by counsel did not undermine the conviction. The sentence was deemed appropriate and not excessive in the circumstances.

Orders