SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CERULLO
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
6 July 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - PROCEDURE - SEARCHES OF PERSONS, PROPERTY OR PREMISES
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - POSSESSION
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTION TO JURY
Appellant found guilty by jury of possession of cocaine in contravention of section 233B(1)(ca) of the Customs Act 1901 – Whether appellant was in possession of cocaine found in trailer located in garage attached to appellant’s home – Evidence that two keys to trailer padlocks were found in appellant’s property – Evidence of inadequacies in police searches of appellant’s property, and in police record keeping – Appeal against conviction on ground that it was not open to the jury to find beyond reasonable doubt that appellant was in possession of either key – Whether the trial Judge erred in not directing the jury to this effect, or alternatively, in not directing jury to disregard the evidence in relation to the keys found in property of appellant – Whether trial miscarried by reason of cumulative errors – Evidence concerning keys was circumstantial evidence to be considered by jury – Whether keys were in the possession of the appellant depended upon jury’s assessment of credibility of prosecution witnesses – Open to the jury to rely upon the prosecution evidence as to the location of the two keys – Whether it was necessary to direct jury that proof of the appellant’s possession of the keys was an essential step in the reasoning toward guilt which had to be established beyond all reasonable doubt – Trial Judge’s direction on this aspect placed a higher onus on the prosecution than was necessary – No other error shown – Appeal dismissed.
Customs Act 1901 (Cth), s 233B, referred to.
M v The Queen (1994) 181 CLR 487; Morris v The Queen (1987) 163 CLR 454 ; Smith v The Queen (2001) 206 CLR 650; Jones v The Queen (1997) 191 CLR 439 , applied.
Prasad v The Queen (1994) 68 ALJR 194; Pearce and Carter v DPP (No 2) (1992) 59 A Crim R 182; R v Dib (1991) 52 A Crim R 64; R v Amanatidis [2001] NSWCCA 400; (2001) 125 A Crim R 89; R v Filippetti (1978) 13 A Crim R 335, distinguished.
Shepherd v The Queen (1990) 170 CLR 573 , discussed.
R v Cerullo [2003] SASC 185; (2003) 227 LSJS 509; Kingswell v The Queen (1985) 159 CLR 264; R v Meaton (1986) 160 CLR 359, considered.
R v CERULLO
[2005] SASC 250Court of Criminal Appeal Gray, White and Layton JJ
GRAY and…
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- R v Cerullo [2005] SASC 250
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- [2005] SASC 250
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CaseChat Overview and Summary
In the case of R v Cerullo, the appellant appealed against his conviction for possession of cocaine in contravention of section 233B(1)(ca) of the Customs Act 1901. The primary legal issues concerned the admissibility of evidence regarding two keys to a locked trailer where the cocaine was found, and the sufficiency of the evidence to establish the appellant's possession of the keys and, by extension, the trailer. The court had to decide whether the trial judge erred in not directing the jury to disregard the evidence concerning the keys or in not instructing the jury that the prosecution needed to prove the appellant's possession of the keys beyond reasonable doubt.
The court found that the evidence concerning the keys was circumstantial and it was within the jury's purview to assess the credibility of the prosecution witnesses and the significance of the keys. The court held that while the trial judge placed a higher onus on the prosecution than necessary, this error did not result in a miscarriage of justice. The court emphasised that the jury was open to rely on the prosecution's evidence regarding the keys. Consequently, the appeal was dismissed as no other errors were demonstrated.
The court concluded that the trial judge’s direction on the possession of the keys placed a higher burden on the prosecution than required by law. However, this did not prejudice the appellant since the prosecution still carried a heavier burden than necessary. The court held that there were no other errors in the trial proceedings that warranted overturning the conviction. The appeal was dismissed, and the conviction stood as determined by the jury.
The court found that the evidence concerning the keys was circumstantial and it was within the jury's purview to assess the credibility of the prosecution witnesses and the significance of the keys. The court held that while the trial judge placed a higher onus on the prosecution than necessary, this error did not result in a miscarriage of justice. The court emphasised that the jury was open to rely on the prosecution's evidence regarding the keys. Consequently, the appeal was dismissed as no other errors were demonstrated.
The court concluded that the trial judge’s direction on the possession of the keys placed a higher burden on the prosecution than required by law. However, this did not prejudice the appellant since the prosecution still carried a heavier burden than necessary. The court held that there were no other errors in the trial proceedings that warranted overturning the conviction. The appeal was dismissed, and the conviction stood as determined by the jury.
Orders
Orders of the court
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Background
Background to the litigation
There are five grounds of appeal. Each relates to evidence admitted at the trial about two keys to the locked trailer which were said to have been found in the appellant’s clothing and in his car.Background Circumstances In May 2000, the appellant leased two premises in Adelaide. The first was an industrial block of land containing a large shed at 16 York Street, Wingfield. Those premises were leased by the appellant in his own name. The second was the unit at James Street, Prospect. Those premises were leased by the appellant using the name Gary Dettman. At the time of leasing the premises at York Street, Wingfield, the appellant told witnesses that he was setting up business as a stonemason specializing in monumental masonry. The appellant acquired a number of large blocks of stone ostensibly for use in that proposed business. The Crown case was that the stone masonry business was no more than a façade for the appellant’s real purpose, namely, involvement with commercial quantities of cocaine. On the afternoon of 16 August 2000 the appellant was arrested at a marine showroom at Blair Athol in relation to an unrelated matter. In a search of the appellant immediately following his arrest, the police found, amongst other things, two wallets and some keys. One wallet contained money and papers in the appellant’s own name. The other wallet contained money and papers in the name Gary Dettman. The police also searched the Holden Commodore sedan in which the appellant had travelled to the showroom. Amongst other things, they found a lease agreement for the unit at James Street, Prospect, in which the lessee was described as Gary Dettman. The appellant told the police that he resided at 16 York Street, Wingfield. Shortly after the arrest, the police, in company with the appellant, went to the premises at York Street, Wingfield. The police entered the shed using a key from among those found on the accused. The shed comprised a workshop and office. There was little indication that anyone lived in the shed but the appellant told the police that he slept on a couch located there and that he ate out. In addition there were two refrigerators, a television set and a gas ring which could be used for cooking. At the back of the shed were a number of large blocks of stone. Inside the shed the police located three large blue plastic barrels. The appellant was then taken by the police to the Adelaide City Watch House where he was charged in relation to the unrelated matter. In the evening of 16 August 2000, the police went to the unit in James Street, Prospect and searched it. In the kitchen they found, amongst other things, a little over $300,000 in notes. In the garage attached to the unit, they found a trailer covered with a metal canopy with padlocked doors at its rear. The police used bolt cutters to break the two padlocks. Inside the trailer they found a number of blue barrels which, when opened, were found to contain the discs of cocaine. The appellant was charged only with the offence of possession of a prohibited import. It was not part of the Crown case that the appellant had imported the cocaine into Australia.
Evidence
Evidence Before The Court
The submissions of the appellant at trial and on appeal were based in what were said to be a number of “inadequacies and … inherent improbabilities” in the Crown evidence concerning the appellant’s possession of the keys. It was suggested to Mr Wilson, the officer in charge of the Australian Federal Police (“AFP”) investigation, that he had substituted the first key for another key found in the appellant’s trousers, and that he had added the second key to the appellant’s vehicle before “finding” it there. The Evidence of the Appellant The appellant told the jury that he was born in Italy and had grown up in that country. His father worked in a marble mine at Carrara and, as a result, during the course of his growing up he had obtained experience in working with stone. The appellant initially came to Australia in 1970 and developed a successful business in the manufacture of caravans. Between 1994 and March 2000, however, he had been overseas, and in particular, in Italy. Whilst in Italy, he heard from some Australians of the possibility of establishing a business manufacturing and supplying pre-fabricated mausoleums. The appellant said that he decided to take up the idea and arranged to purchase an expensive and large stone cutting machine. He also arranged the purchase and import into Australia of a supply of stone. The stone cutting machine had been arranged to arrive in Australia in about October 2000. The appellant himself arrived in Australia on 31 March 2000. He said that he brought with him approximately $A360,000 but some of this was in $US and some in Lira. After a short time in Queensland he went to Melbourne. He said that he purchased a car from one Gary Dettman and, for a further $4,000 purchased from the same man some documents of identity in the name of Gary Dettman. The appellant said that he leased the York Street, Wingfield premises for the purposes of carrying on the proposed masonry business. He had the imported stone delivered to that address. He said that he did stay overnight in the Wingfield premises from time to time. The appellant said that he leased the unit at James Street Prospect so as to be able to provide accommodation to the workers who would be coming to install the large stone cutting machine, and because it was more comfortable for him than living at Wingfield. The appellant said that the trailer belonged to others. It had been used to store tools and for most of the month of May 2000 had been left at the Wingfield premises. The appellant said that the trailer had been brought to the Prospect unit because he thought that it would be safer there than at Wingfield. The trailer had been empty when it was put in the garage at the Prospect unit. At that time, the rear doors had been secured with wire only. The appellant agreed that he had purchased the utility in which the traces of cocaine were found but said that a number of different people had driven the utility after he had taken possession of it. Whilst in Adelaide after April 2000, the appellant said that he purchased, using cash, a number of items of equipment including some expensive equipment. He proffered an explanation for his use of a false identity.
Decision
Reasons for decision
In the circumstances, the trial Judge placed a higher onus on the Crown with respect to the proof of the possession of the keys than the law required. However, the consequence was that the appellant benefited by the prosecution carrying a greater evidentiary onus than it should have on this issue.Conclusion For these reasons we would reject the first four grounds advanced by the appellant, all of which, in substance, complained about the evidence of possession of the keys being left to the jury. The final ground of appeal presumed that the evidence of possession of the keys should have been withdrawn from the jury. This then led to the submission that in the absence of proof that the keys were found in the possession of the appellant, it followed that there was a reasonable hypothesis that some other person had possession of the keys and that therefore the Crown had not proved exclusive possession on the part of the appellant. The Crown joined issue with the trial Judge’s direction concerning exclusive possession, arguing that the direction was unduly favourable to the appellant. However, as the premise for this ground, grounds one to four, was not established, there is no need to further consider this ground. For these reasons we would dismiss the appeal. WHITE J: The appellant was found guilty by a jury of having had in his possession on 16 August 2000 a prohibited import in contravention of s 233B(1)(ca) of the Customs Act 1901 (Cth). This is an appeal against the conviction. The prohibited import which was the subject of the charge was cocaine. The cocaine was in the form of 476 compressed white powder discs, the net weight of which (excluding wrappings) was 317 kg. The amount of pure cocaine was 219 kg. There was evidence that the discs had a value of $31 million. The cocaine was located in a locked trailer parked in a garage attached to a unit at 2/17 James Street, Prospect. There are five grounds of appeal. Each relates to evidence admitted at the trial about two keys to the locked trailer which were said to have been found in the appellant’s clothing and in his car.Background Circumstances In May 2000, the appellant leased two premises in Adelaide. The first was an industrial block of land containing a large shed at 16 York Street, Wingfield. Those premises were leased by the appellant in his own name. The second was the unit at James Street, Prospect. Those premises were leased by the appellant using the name Gary Dettman. At the time of leasing the premises at York Street, Wingfield, the appellant told witnesses that he was setting up business as a stonemason specializing in monumental masonry. The appellant acquired a number of large blocks of stone ostensibly for use in that proposed business. The Crown case was that the stone masonry business was no more than a façade for the appellant’s real purpose, namely, involvement with commercial quantities of cocaine. On the afternoon of 16 August 2000 the appellant was arrested at a marine showroom at Blair Athol in relation to an unrelated matter. In a search of the appellant immediately following his arrest, the police found, amongst other things, two wallets and some keys. One wallet contained money and papers in the appellant’s own name. The other wallet contained money and papers in the name Gary Dettman. The police also searched the Holden Commodore sedan in which the appellant had travelled to the showroom. Amongst other things, they found a lease agreement for the unit at James Street, Prospect, in which the lessee was described as Gary Dettman.
Ratio Decidendi
Legal Principle Established
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