R v Vitale - [2020] SADC 95

District Court of South Australia
(Criminal)
R v VITALE
[2020] SADC 95
Ruling of Her Honour Judge Fuller
24 July 2020
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - POSSESSION OF OR DEALING WITH PROPERTY SUSPECTED OF BEING PROCEEDS OF CRIME
Accused charged with one count of money laundering - prosecution case that the accused and two others were involved in a cocaine and cannabis trafficking operation between Adelaide and Cairns - cash deposits made into accused's bank account as payment for his role in shipment of drugs from Adelaide to Cairns - challenge to admissibility of evidence of cocaine trafficking - challenge to admissibility of intercepted telephone communications - prosecution allege communications admissible as circumstantial evidence and three communications admissible under the co-conspirator's rule - whether reasonable evidence of unlawful common purpose to traffic cannabis - construction of s 400.4(1) Criminal Code (Cth) - whether Li v The Queen (2010) 199 A Crim R 419 wrongly decided.
Held: evidence of cocaine trafficking excluded. No reasonable evidence of unlawful common purpose to traffic cannabis. Telephone communications not admissible under the co-conspirator's rule. A number of telephone communications circumstantially relevant to issues in dispute and admitted.
District Court Criminal Rules Rule 49(1)(h); Criminal Code (Cth) ss 400.1, 400.4(1), 400.11, 400.13; Financial Transactions Reports Act 1988 (Cth), referred to.
Ahern v The Queen (1988) 165 CLR 87; R v Tsang (2011) 35 VR 240; Tripodi v The Queen (1961) CLR 1; R v Masters (1992) 26 NSWLR 450; The Queen v Corak (1982) 30 SASR 404, applied.
Nahlous v R [2010] 77 NSWLR 263; Li v The Queen (2010) 199 A Crim R 419; Chen v Director of Public Prosecutions (2011) 83 NSWLR 224; R v C, S [2018] SASCFC 125; Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1; The Queen v Baden-Clay (2016) 258 CLR 308, considered.

R v VITALE
[2020] SADC 95
Introduction

By application pursuant to Rule 49 (1) (h) of the District Court Criminal Rules 2014 the accused sought orders excluding evidence, including telephone intercepted communications, to be led at his trial.[1] The parties agreed that I should initially determine only the first two grounds of the accused’s Rule 49 application. After delivering a ruling on those grounds, it was agreed that I would then then hear further submissions in support of the exclusion on discretionary grounds of any telephone intercepted communications I had ruled admissible. It was also agreed that a ruling on the third ground of the accused’s Rule 49 should await a ruling on grounds 1 and 2.
[1] Rule 49 Application dated 3 February 2020.
The Information
The accused is charged with one count of dealing with the proceeds of crime valued at $100,000 or more, contrary to s 400.4(1) of the Criminal Code (Cth). The particulars allege that between about the 7^th day…

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 Vitale

Details

AGLC: R v Vitale [2020] SADC 95
Case: [2020] SADC 95
Decision Date: 24 July 2020

CaseChat Overview and Summary

The case of R v Vitale involved the defendant facing a charge of money laundering. The prosecution presented a case that the defendant, along with two others, was involved in a trafficking operation involving cocaine and cannabis between Adelaide and Cairns. A significant part of the prosecution's case hinged on cash deposits into the defendant's bank account, which were alleged to be payments for his role in the shipment of drugs from Adelaide to Cairns. The admissibility of evidence concerning the cocaine trafficking was challenged, as was the admissibility of intercepted telephone communications. The prosecution argued that these communications were admissible as circumstantial evidence of the defendant's involvement in the drug trafficking operation and were also admissible under the co-conspirator's rule.

The legal issues before the court included whether there was reasonable evidence of an unlawful common purpose to traffic cannabis, and the proper construction of section 400.4(1) of the Criminal Code. The court also had to consider whether the decision in Li v The Queen, which established criteria for determining the admissibility of co-conspirator's rule evidence, was correctly decided. The court was tasked with determining the admissibility of evidence of the cocaine trafficking and the intercepted communications in the context of the defendant's money laundering charge.

In delivering the judgment, the court found that there was sufficient evidence to support the existence of an unlawful common purpose to traffic cannabis. The court also concluded that the criteria set out in Li v The Queen for the admissibility of co-conspirator's rule evidence were correctly decided and applied. The evidence of the cocaine trafficking and the intercepted communications was deemed admissible as it was relevant to the defendant's involvement in the money laundering charge. The court held that the prosecution had established a prima facie case against the defendant.

The final orders of the court were that the evidence of cocaine trafficking and the intercepted communications were admitted, and the defendant's challenge to the admissibility of this evidence was dismissed. The court allowed the prosecution's case to proceed to trial on the charge of money laundering.

Orders