R v Cerullo No. Sccrm-02-330 - [2003] SASC 185

R v CERULLO
[2003] SASC 185
Court of Criminal Appeal: Prior, Bleby and Sulan JJ

PRIOR J: The appellant was convicted by a jury of having in his possession a prohibited import reasonably suspected of being imported into Australia in contravention of the Customs Act 1901 (Cth). The prohibited import the subject of this charge was some 219 kgs of pure cocaine in 476 compressed white powder discs, located in a locked trailer at premises at 2/17 James Street, Prospect on 16 August 2000.
In this appeal, the appellant seeks to have his conviction set aside and a retrial ordered. He complains of evidence being wrongly admitted by the trial judge, failures to direct the jury on permissible and proper use of evidence admitted and errors with respect to directions given on the burden of proof and about the use of lies as evidence of consciousness of guilt. A further complaint relates to the direction given on the element of the offence that requires that the prohibited import be reasonably suspected of being imported into Australia contrary to the provisions of the Customs Act. The appellant also says that the trial miscarried by reason of the cumulative effect of the errors referred to in the grounds of appeal.
On 16 August 2000, police went to a flat in James Street, Prospect after they had detained the appellant at a Marine showroom on the Main North Road at Blair Athol. The appellant had been searched. He was found to have about $5000 in cash on him, two mobile telephones and a number of keys. He had two wallets with him. One contained money and papers in his own name, the other also money and papers. The papers in the other wallet were in the name of one Gary Dettman.
The Commodore car in which the appellant arrived at the showroom had Victorian number plates. Cocaine was later detected in the front and rear of that car. In the car were documents and other items including a lease for the James Street unit. The lessee was named as Gary Dettman.
The police wanted to search the appellant’s house. The appellant had given his address as 16 York Street, Wingfield. At that address there was no house. It was a block of land enclosed by a cyclone fence. There was a shed on the property. It was divided into a workshop and an office. Amongst some apparently brand new equipment, were three large blue plastic barrels. At the back of the shed were a number of large blocks of stone. Cocaine was later detected in a sample of white powder, taken from the tray of a utility then there.
Police went to the James Street address. There they located, in the kitchen, just over $300000 in cash. In the garage was the locked trailer. A key found in the appellant’s trousers fitted the lock, as did one found in the Commodore car. The trailer carried the same registration number as the…

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.

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Details

Case: [2003] SASC 185
Decision Date: 17 June 2003

CaseChat Overview and Summary

In the case of R v Cerullo, the appellant was convicted of drug trafficking offences. The court of appeal was tasked with determining the admissibility of evidence related to cash found at the appellant's premises, cash transactions, and shipments of sandstone that were suspected of containing cocaine. The court's primary focus was to decide whether the evidence of the Ladian imports should have been excluded.

The court considered the general principles of evidence admissibility under common law, emphasizing that evidence is admissible if it tends to prove a fact in issue or a fact relevant to a fact in issue. The court referred to previous cases, such as Goldsmith v Sandilands, which underscored the necessity for evidence to have probative value and not be overly prejudicial or irrelevant. The court also noted that evidence is generally excluded if its probative value is too low to justify the cost and inconvenience of its proof.

In reaching its decision, the court found that the evidence of money found at the James Street premises and cash transactions was correctly admitted as it was relevant to the charges of drug trafficking. However, the evidence of the Ladian imports was deemed inadmissible. The court concluded that these shipments of sandstone, which were suspected of containing cocaine but were found to be free of any such substances, did not have sufficient probative value to justify their inclusion in the trial.

The appeal was allowed, the conviction was set aside, and a retrial was ordered. The court's decision hinged on the proper application of the principles of admissibility and relevance, ensuring that the evidence presented in court was both relevant and probative of the charges against the appellant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Prior J has recited the relevant facts. We will not add to them except where necessary to deal adequately with the points under discussion.The Admissibility of the Evidence We have considered the question of the admissibility of the evidence of the finding of cash, the cash transactions and the Ladian imports. For the reasons which follow we are of the opinion that the evidence of money found at the James Street premises and cash transactions was correctly admitted. We consider that the evidence of the Ladian imports should have been excluded. Evidence is generally only admitted if it tends to prove a fact in issue or a fact relevant to a fact in issue. There are some exceptions to this principle but it is unnecessary to deal with them here. In Goldsmith v Sandilands & Others (2002) 76 ALJR 1024; 190 ALR 370 at [31], McHugh J said:“Under the common law rules of evidence, evidence is generally admissible only if it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact.” In Palmer v The Queen (1998) 193 CLR 1 at [55], McHugh J said:“In general, evidence of a relevant fact is excluded only when it infringes some policy of the law, one of which (even in civil cases) is that evidence of a relevant fact is not admissible if the probative value of that fact is so low that it cannot justify the time, convenience and cost of litigating its proof.” See Evidence Act 1958 (Vic), s 37(b).Cash and Financial Transactions On the 16 August 2000, police officers searched the premises at James Street. An amount of $19,800 in cash was concealed in a box of Mt Lofty spring water on a kitchen bench. An amount of $70,000 in cash was discovered in the top of the pantry. In a bag in the bottom of the pantry police discovered $209,770 in cash. In the period leading up to his arrest the appellant was involved in a number of large cash transactions which included the purchase of a boat for the sum of $30,000 and the purchase of land at Truro for $130,000.The Ladian Imports The evidence of Ladian imports can be summarised as follows. There were four shipments of sandstone from Colombia by the appellant. The first contained two containers which were examined by customs officers including the witness Deane Bawden (Bawden) on 7 April 2000 and 10 April 2000. Bawden gave evidence that he inspected the shipment, and carried out various tests looking for the presence of cocaine. None was found. There was a shipment of four containers which arrived in Melbourne on about 23 April 2000 containing two blocks of stone per container. They were examined on 9 May 2000 and no evidence of cocaine was found. The third shipment of three containers each containing two blocks of stone landed in Melbourne and was examined in July 2000. No cocaine was found. A fourth shipment of three containers containing seven blocks of stone was seized by customs officers. This shipment has not been released by the Customs Department. No evidence of cocaine was found. Customs officers attended at the appellant’s premises at Wingfield and seized eleven blocks of stone. They were examined in August 2000 and subsequently destroyed. No cocaine was found. A number of blocks of stone which had earlier been examined by customs officers were no longer accessible.

Decision

Reasons for decision

We agree that the appeal must be allowed, the conviction set aside and a retrial ordered.JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT 1.Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 at [31]; Palmer v The Queen (1998) 193 CLR 1 at [55]2. cp Wilson v The Queen (1970) 123 CLR 334 at 3403. Wilson v The Queen (1970) 123 CLR 334 at 3374. cp Palmer v The Queen (1998) 193 CLR 1 at [55]5. O’Leary v The King (1946) 73 CLR 566 at 5776. R v Nieterink (1999) 76 SASR 56 at [41]7. (1999) 76 SASR 56 at [45 – 46]8. R v Dolan (1992) 58 SASR 501 at 503 and 5189. Glennon v The Queen (1993) 179 CLR 110. (2002) 76 ALJR 899; 189 ALR 4011. Gummow and Hayne JJ in Murray at [57]12. Callinan J adopting McPherson JA in Murray at [132]13. Peacock v The King [1911] 13 CLR 619 at 63414. (1993) 178 CLR 193

Ratio Decidendi

Legal Principle Established

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