R v Cerullo

Case [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
38

                              60059/02
                              60060/02

                              SPIGELMAN CJ
                              HULME J
                              BUDDIN J

                              29 July 2003
      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.

      4 Both Appellants have appealed against their conviction and sought leave to appeal against sentence. The grounds of appeal of each are in the same terms and are as follows:-
              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.
              3. Her Honour erred in:
              (a) admitting; and
                  (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…

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R v Cerullo [2003] NSWCCA 201
Case
[2003] NSWCCA 201
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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