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 of April 2017 and the 15^th day of August 2017 at Fulham Gardens or elsewhere in the State of South Australia the accused dealt with money or property valued at $100,000 or more, by possessing $113,250 in Australian currency in Westpac bank account number 032113424914, that was, and he believed to be, proceeds of crime.
Money Laundering
Section 400.4 of the Criminal Code relevantly provides: -
(1) A person commits an offence if:
(a)the person deals with money or other property; and
(b)either:
(i)The money or the property is, and the person believes it to be, proceeds of crime; or
(ii)The person intends that the money or property will become an instrument of crime; and
(c)at the time of the dealing, the value of the money and other property is $100,000 or more.
Section 400.1 defines “proceeds of crime”:
Proceeds of crime means any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).
Section 400.13 relevantly provides:
(1) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division the money or property is proceeds of crime, to establish
(a)a particular offence was committed in relation to the money or property; or
(b)a particular person committed an offence in relation to the money or the property.
Section 400.11 provides:
In a prosecution for an offence against a provision of this Division, it is not necessary to prove the existence of any fault element in relation to any of the following:
(a)     whether an offence may be dealt with as an indictable offence;
(b)     whether an offence is an indictable offence;
(c)     whether an offence is a Commonwealth indictable offence;
(d)     whether an offence is a foreign indictable offence;
(e)     whether an offence is a State indictable offence;
(f)     whether an offence is an Australian Capital Territory indictable offence;
(g)     whether an offence is a Northern Territory indictable offence.
Section 5.1 of the Criminal Code provides:
(1)A fault element for a particular physical element may be intention, knowledge, recklessness or negligence;
(2)Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence.
Section 400.4 (1) specifies a fault element of belief.
Rule 49 Application
The accused made application pursuant to Rule 49 (1)(h) District Court Criminal Rules 2014 for evidence to be excluded, inter alia, as follows:
1. That the CDPP not be permitted to lead evidence of any words or conduct of Gaetano Del Giglio, Franco Campanella, Ufuk Biyikli, Luke Cakebread, Matthieu Devie, Dominic Frisone, Fabio Gatto, Ryan Hill, Matthew Hilton, Shane Johnston, Valentino La Vista or Keiren Wilson, said or made in the absence of the Defendant or which is otherwise not adopted by him.
2. That the CDPP not be permitted to lead evidence of the alleged criminal behaviour of Mr Del Giglio beyond any admissible evidence of the alleged criminal behaviour said to ostensibly involve the defendant.
The grounds relied upon were, respectively:
1. The defendant is not charged together with any of the identified persons and the prosecution is not alleging a conspiracy or joint enterprise. In the event that a conspiracy or joint enterprise was to be alleged, the preconditions to the admissibility of evidence of words and conduct said or made in the absence of the defendant is not established.
2. The prosecution alleges that the defendant received the money the subject of the charge from Mr Del Giglio as payment for cannabis alleged to have been shipped from Adelaide to Cairns via Fastway couriers. In addition to the criminal behaviour of Mr Del Giglio said to involve the defendant, the prosecution seeks to lead evidence of further criminal behaviour of Mr Del Giglio and Keiren Wilson that does not involve the defendant including other cannabis trafficking, cocaine importation and trafficking, firearms offences, robbery, importation and trafficking of methylamphetamine. There is no evidence on the prosecution brief that suggests or establishes to the requisite standard that the defendant had any knowledge of the broader criminal behaviour of Mr Del Giglio or Mr Wilson. The evidence is more prejudicial than probative.
Voir Dire
No oral evidence was adduced on the voir dire, but the following evidence was tendered:
·Transcript and Audio of Telephone Intercepted Conversations and SMS and a prosecution and defence table of these calls/SMS; [2]
[2]    Exhibit VDP1, VDP1A, VDP4 and VDP5.
·A table showing dates of the deposit and delivery of consignments; [3]
[3]    Exhibit VDP3.
·Transcript of Interview with the accused on 23 March 2018;[4]
[4]    Exhibit VDP6.
·Statement of Keiran Wilson dated 16 April 2019;[5]
[5]    Exhibit VDP2.
·Two statements of Valentino La Vista dated 28 May 2018 and 5 September 2019;[6]
·Two statements of Fabio Gatto dated 22 May 2018 and 15 April 2020;[7]
·Two statements of Shane Johnston dated 19 August 2019 and 15 April 2020’[8]
·Statement of Michael Krason, Fastway Couriers, dated 28 October 2019;[9]
·Statement of Liam Ong dated 22 November 2019, Fastway Couriers;[10]
·Statement of Detective Brevet Sergeant Kym Wall dated 31 August 2019;[11]
·Statement of Detective Sergeant Michael Vincent dated 7 November 2019;[12]
·Statement of Investigating Officer Federal Agent Marita Muller dated 5 May 2020;[13]
·Statement of Michael Johnston 26 May 2018;[14]
·Statement of agreed facts[15]
[6]    Exhibit VDP7.
[7]    Exhibit VDP8.
[8]    Exhibit VDP9.
[9]    Exhibit VDP10.
[10] Exhibit VDP11.
[11] Exhibit VDP12.
[12] Exhibit VDP13.
[13] Exhibit VDP14.
[14] Exhibit VDP15.
[15] Exhibit VDP16
The prosecution case
In written and oral submissions on the voir dire, the prosecution particularised its case against the accused. In summary, the prosecution case was as follows:
In 2017, a joint Australian Federal Police (“AFP”) and Queensland Police Service (“QPS”) investigation named Operation Aymara was conducted in Cairns, Queensland into the criminal activities of Gaetano Del Giglio (“Del Giglio”) and his associates. The investigation uncovered that between 5 January 2017 and 13 September 2017, 39 identical boxes suspected to contain cannabis were sent from Adelaide, using a service operated by Officeworks at Parafield and Gilles Plains, to a Fasta Pasta Restaurant in Cairns via the courier service Fastway Couriers (“Fastway”). None of the boxes were inspected or seized by police. However, the owner of the Fasta Pasta restaurant, Valentino La Vista (“La Vista”) the head chef, Shane Johnston (“Johnston”) and a local drug dealer Keiran Wilson (“Wilson”) have provided statements asserting that the boxes contained cannabis.
It is the prosecution case that the accused, Francesco (Frank) Campanella (“Campanella”) and Del Giglio were participants in the unlawful common purpose of trafficking cannabis to Cairns and were also aware of, or involved, in the trafficking of cocaine to Cairns.[16]
[16] The prosecution has conceded that there is insufficient evidence of an unlawful purpose to traffic cocaine such as to justify the reception of any of the intercepted telephone communications pursuant to the co-conspirator’s rule: T 205, lines 1-38, T 206, lines 1-32 but maintains that an inference can be drawn that the accused was aware that Del Giglio was also trafficking in cocaine and relies upon a number of communications as circumstantially relevant to proof of the accused’s belief that Del Giglio was trafficking in cocaine.
Wilson was directly involved in Del Giglio’s drug trafficking operation. In 2017, Del Giglio was his supplier of cannabis and cocaine, which Wilson then on-sold to his customers in Cairns. Between about March and September 2017, Wilson said that Del Giglio supplied him with about 200 pounds of cannabis and 16 ounces of cocaine. Del Giglio told Wilson that the cannabis came from South Australia, from the “West Fight Club” and the principal of the operation was Antonio La Rosa.[17] Wilson was aware of this because that was who Del Giglio ‘[got] into arguments with on the phone when an issue happens’.[18]
[17] In exhibit VDP14, Federal Agent Muller’s statement dated 5 May 2020, Muller states that the Detective who took Wilson’s statement said that Wilson had referred to a “Tony with a surname that was “something like La Rosa”’. Muller searched police indices for the name Tony or Anthony La Rosa but the search did not yield any results. Further searches were conducted revealing an Antonio La Rosa born 1964 who was linked to a business address with no result on the Electoral Roll; Sam Tony LaRosa born 1992; three entities named Antonio Larizza; Antonio Lorusso born 1971 who lived in South Australia prior to 2009 and then moved interstate; Maria Antonette LaRosa born 1962.
[18] VDP2, paragraph 26.
The first supply of cannabis by Del Giglio to Wilson was in March 2017 consisting of two boxes each containing 12.5 pounds of cannabis made up of five bricks or blocks that each weighed 2.5 pounds. Wilson sold the cannabis and paid the proceeds, less his profit, to Del Giglio. Dominic Frisone (“Frisone”) would collect the money on behalf of Del Giglio. During the following months, Wilson received larger quantities which he on-sold in the same way. Payments to Del Giglio were made in $50.00 notes packaged in plastic bags. From June 2017 Wilson would collect the cannabis from, and leave payment at, Fasta Pasta. In June 2017, Wilson commenced buying cocaine from Del Giglio. The cocaine was initially express posted to 125 Kamerunga Road.[19]
[19] On subsequent occasions the cocaine was sent to Del Giglio’s home and to Bridgestone Tyres Smithfield.
Wilson said that he received 200 pounds of cannabis (for which he paid Del Giglio $3450 per pound) and 16 ounces of cocaine (for which he paid Del Giglio between $7500 - $8000 per ounce). He received a further 100 pounds of cannabis for which he did not pay Del Giglio.[20]
[20] There is an apparent discrepancy in the statement of Keiren Wilson dated 16 April 2019 regarding the total amount of cannabis that he asserts he was supplied by Del Giglio. At paragraph 13 he states that between March and September 2017 Del Giglio supplied him with about 300 pounds of cannabis. In paragraph 152 he states that the total amount of cannabis he obtained from Del Giglio was 200 pounds. However the amounts of cannabis he refers to in his statement suggest that he received 200 pounds for which he paid Del Giglio $690,000 and a further 100 pounds for which he did not pay Del Giglio.
Police intercepted Del Giglio’s mobile telephone service from 29 May 2017. Del Giglio was in regular contact with a number of phone services, including the service subscribed to by the accused. I was informed that:
1.   There are 23,708 sessions in relation to the telephone intercept warrant for DEL GIGLIO’s phone. This number includes duplicated calls, ‘shadow’ calls with no content where DEL GIGLIO has used another voice application (e.g. Wickr), and sessions with actual content (SMS, MMS, audio).
2.   There are 11,569 sessions that are either audio/MMS/SMS.
3.   Of these 11,569 sessions, Australian Federal Police estimate half are duplicates. The total number of individual audio/MMS/SMS sessions would be approximately 5,750.
4.   There were seven SMS and approximately 468 audio sessions between DEL GIGLIO and VITALE’s number captured. Approximately half would be duplicate calls. Most calls went unanswered. Five audio calls that contained content between DEL GIGLIO and the Defendant were deemed not to be of interest by Australian Federal Police.
5.   A total of 244 audio sessions/SMS were identified as of interest in this matter.
6.   34 of these audio sessions/SMS involved VITALE as a participant. 22 of these audio sessions and four SMS have been tendered to the court for voir dire purposes.
Westpac banking records revealed that 6 payments were made into the accused’s Westpac bank account during the relevant period. The payments were made from Westpac branches in Cairns by cash transactions (consisting of $50 and $100 notes) and were made on 7 April 2017 ($24,000), 19 May 2017 ($20,000) by Del Giglio, 11 May 2017 ($8,000) and 12 May 2017 ($19,800) by Ryan Hill (“Hill”), on 24 May 2017 ($21,450) and 15 August 2017 ($20,000) by Fabio Gatto (“Gatto”). Hill and Gatto were both known associates of Del Giglio. The identity of the person who made the first deposit is not known. The total amount deposited into the accused’s account by or on behalf of Del Giglio was $113,250.
VDP3 sets out the dates of the deposits of the consignments in a locker with Fastway and the dates that the consignments were delivered in Cairns. Between 5 January 2017 and 6 April 2017, 12 consignments were deposited and then delivered. On 7 April 2017, $24,000 was deposited into the accused’s account. Between 2 April 2017 and 9 May 2017, 5 consignments were deposited and delivered. Between 11 May 2017 and 24 May 2017, $69,250 was deposited into the accused’s account, with only one transaction being under $10,000. Between 25 May 2017 and 20 June 2017, 10 consignments were deposited and delivered. On 15 August 2017, $20,000 was deposited into the accused’s account. Between 10 August 2017 and 13 September 2017, 12 consignments were deposited and delivered. No further payments were made into the accused’s account.
According to Detective Wall, in 2017 the price per pound of flowering cannabis head was between $2000 - $3000. Detective Wall also states that one of the common indicators that a person is actively involved in drug dealing is ‘evidence of cash transfers in amounts under $10,000 or multiple structured’.[21]
[21] Exhibit VDP 12, paragraphs [48], [52].
It is evident that there is no particular correspondence between the timing and number of consignments and their contents and the payments made to the accused. All but one of those payments constitute a significant cash transaction under the Financial Transactions Reports Act 1988 (Cth) which was required to be reported by Westpac to AUSTRAC.[22]
[22] Australian Transactions Reports and Analysis Centre; Section 7 Financial Transactions Reports Act 1988
In respect of Del Giglio’s income and banking records the following facts were agreed:
1.Records from the Australian Taxation Office show that Gaetano Del Giglio declared income in the following amounts on the following dates:
2.Between 1 January 2017 and 30 June 2017, a total of $125,180 was deposited into Del Giglio’s ANZ bank account number 2118-88767.
3.On 13 June 2017 with an account balance of $168,290.38 Del Giglio withdrew $150,000 from his ANZ bank account number 2118-88767 and deposited this amount into his home loan bank account.
4.Between 1 July 2017 and 30 December 2017, a total of $47,990.08 was deposited into Del Giglio’s ANZ bank account number 2118-88767.[23]
[23] Exhibit VDP16
Proof that the money was the proceeds of an indictable crime
It is the prosecution case that the combined effect of this evidence proves that the source of the six payments made to the accused was Del Giglio’s income from his illegal drug trafficking operations and that income was generated from the on-sale of cannabis couriered from Adelaide to Cairns and cocaine transported by unknown means from Adelaide to Cairns. Thus, it is said that the evidence of Del Giglio’s illegal drug trafficking operations is admissible to prove that the $113,250 was the proceeds of an indictable offence.
Although the prosecution case as particularised falls within the very wide ambit of the offence of money laundering, the receipt of the money by the accused was, on the prosecution case, payment for his role in the shipment of the cannabis and/or cocaine to Del Giglio.
I refer to the observations of the NSW Court of Criminal Appeal in Nahlous v R [2010] 77 NSWLR 263:
The Code offence was intended to punish the possession of the proceeds of crime however they are obtained and the fact that the proceeds of the crime were in the public domain and could be dealt with or passed on to others. We accept that this may be a justification for the prosecution of such an offence particularly where the source of the funds is unknown, or where the proceeds were derived from the criminal act of another person or where the person is in some way dealing with the proceeds in order to hide their source or change the nature of the proceeds.[24]
In R v Guo; R v Quian [2010] 201 A Crim R 403, Johnson J said:
It is likely that an offender before the court for sentencing for an offence within the Division will be a person facilitating the laundering of the money or actually involved in that process, rather than the owner of the money or the beneficiary of the laundering. The prosecution may not be able to show that the offender knew of the source of the money or its ultimate destination. In Assafiri v The Queen [2007] NSWCCA 159 an analogy was drawn between money laundering offences and drug importations in that both types of offences usually reveal a hierarchy of persons involved in the conduct who have different roles to play and different gains to be made from the commission of the crime.[25]
[24] At [18].
[25] At [123].

A similar point was made in Thorn v R (2009) 198 A Crim R 135 by Howie J (Campbell JA and Rothman J agreeing):
In sentencing for the money laundering offence the judge referred to a number of decisions of this Court including Ansari v The Queen (2007) 70 NSWLR 89; 173 A Crim R 112 and R v Huang (2007) 174 A Crim R 370. But those cases involved money laundering of a completely different character to that involved in the offence before his Honour. Ansari concerned persons who were intimately involved in dealing with money that was the result of some other person’s criminal activity so as to hide its source. That is money laundering in the true sense of that term and clearly the type of activity that the legislature had in mind in creating the offence. Similarly Huang and Sui were involved in money laundering as it is generally understood but at a lower level of criminality than in Ansari. They were involved in taking sums of money at the behest of another and depositing it in various accounts under false names to hide the source of the funds.
But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.[26]
[26] At [30]-[31]
I have referred to these decisions because the prosecution contends that there is reasonable evidence that the accused, Del Giglio and Campanella had a common purpose to traffic cannabis.[27]
[27] The prosecution has conceded that the reasonable evidence of an unlawful common purpose is confined to the unlawful common purpose of trafficking cannabis and not cocaine. However, the prosecution maintains that the evidence permits an inference to be drawn that the accused was aware that Del Giglio was also trafficking in cocaine: T 205, lines 1-38, T 206 lines 1-32.
On the prosecution case, the reasonable evidence of a common purpose to traffic cannabis is said to be comprised of (a) the fact that the accused and Campanella lived in Adelaide (b) the fact that they and Del Giglio were well known to each other and were in regular telephone contact from 29 May 2017 and that those communications reveal awareness of, and involvement in a cannabis trafficking operation[28] (b) the transportation of 39 boxes containing cannabis from Adelaide to Cairns (c) the supply by Del Giglio to Wilson and others of cannabis and (d) the payments made by or on behalf of Del Giglio to the accused between 7 April 2017 and 15 August 2017 totalling $113,250.
[28] The prosecution contends that the reasonable evidence includes telephone calls which are not sought to be admitted under the co-conspirator’s rule but are said to be relevant as part of the surrounding circumstances which tend to prove the accused’s guilt of the offence. It is argued that they can be used to establish that Del Giglio was involved in drug trafficking and that contributes to the proof that the source of the payments to the accused was this illegal activity. It is further argued that it can be inferred from the content of numerous telephone conversations that Del Giglio was involved, and involved with others, in drug trafficking. It is contended that statements of this type are admissible as circumstantial evidence from which an element of the offence can be inferred and their use is not reliant upon the truth of any assertion contained therein.
The prosecution contends that this evidence constitutes the reasonable evidence which justifies the admission of three intercepted calls (2695, 4187 and 5089) for testimonial purposes pursuant to the co-conspirator’s rule.
Accordingly, on the prosecution case, the jury can infer from the fact that Del Giglio deposited cash into the accused’s account that Del Giglio was paying the accused for his role, as part of the common purpose, in the shipment of the cannabis to Cairns. In other words, the deposits were not being made as a mechanism by which Del Giglio could launder his ill-gotten gains but were payments made for cannabis received. It is further alleged that the source of the funds used to make those payments was the proceeds of Del Giglio’s cannabis and/or cocaine trafficking activities.
The framing of the case in this way is relevant when considering the amount and timing of the cash deposits into the accused’s bank account during the period covered by the charge and the strength of any inference that can be drawn from those deposits. The prosecution alleges that there is a correspondence between the receipt by Del Giglio of cannabis and the making of the payments by cash deposits into the accused’s bank account. In other words, the correspondence permits an inference to be drawn as to the purpose and source of the payments.
I pause to note that, if the allegation had been one of money laundering in the true sense of the word, any disconnect between the date(s) that cannabis was delivered to Del Giglio and the depositing of funds into the accused’s account or a disconnect between the amount of cannabis delivered to Del Giglio and the amount of the money deposited into the accused’s account may have been of little, or no evidentiary significance.
Preliminary issues to be determined
It is agreed that I should determine the admissibility of the evidence of Del Giglio’s cocaine trafficking activities and all intercepted communications that are said to have circumstantial relevance to the issues in dispute, before I then consider whether there is reasonable evidence of a common purpose between Del Giglio, the accused and Campanella to traffic cannabis such that the relevant parts of calls 2695, 4187 and 5089 can be admitted under the co-conspirator’s rule for testimonial purposes. The law is clear that the reasonable evidence must be independent of the evidence sought to be admitted for testimonial purposes.
The evidence of Del Giglio’s cocaine trafficking activities is said to be relevant on two bases; firstly to prove that the money deposited into the accused’s account was the proceeds of an indictable crime and secondly to prove the accused’s belief that the money was the proceeds of a serious crime. The prosecution contends that the indictable crime and the belief need not coincide. However, unless the money is proved to be the proceeds of an indictable crime, the accused’s belief will be irrelevant because an essential element of the offence will not have been proved and the charge will fail.
The admissibility of the evidence of Del Giglio’s cocaine trafficking activities will depend upon whether those activities constituted indictable offences which produced income during the relevant period which, or which it can be inferred, was the source (in part or in whole) of the impugned payments made to the accused. If this cannot be established, then there is a strong argument that this evidence should be excluded as irrelevant or because it is more prejudicial than probative.
The evidence of Del Giglio’s cocaine trafficking activities
The bulk of the evidence regarding Del Giglio’s cocaine trafficking activities is found in the statement of Wilson.[29] He states that it was in June 2017 that Del Giglio ‘started getting cocaine, it was from Adelaide but allegedly from Bogota’[30]. Wilson said that he purchased cocaine for $8000 an ounce and in the ‘first lot’ there were four ounces express posted to 125 Kamerunga Road. In July 2017, Wilson was given 7 ounces of cocaine by Del Giglio, and the remaining 3 ounces was given to Johnston. Del Giglio told him it came from Adelaide and was sent directly to Del Giglio’s home at Smithfield. Wilson was to pay $7500 per ounce to Del Giglio but ‘this was all on consignment as [Del Giglio] didn’t want the money up front because he didn’t want to hold onto the cash until it was time for the Adelaide people to come up’.[31] Del Giglio told Wilson that ‘the guys from Adelaide would fly to Cairns and collect the money from Gary, Gary claimed that they were Hells Angels bikies but I don’t believe that…it would have been someone from the “West Fight Club”. Ryan Hill told me that Gary got all his drugs from here’.[32]
[29] Although Johnston refers to an occasion when Del Giglio and Wilson came to Fasta Pasta with a package of cocaine that had been sent to Del Giglio’s address and a subsequent occasion when he was asked to assist in cutting up 20 ounces of cocaine, he does not say when in 2017 this occurred.
[30] Paragraph 80, statement of Keiren Wilson 16 April 2019, Exhibit VDP2.
[31] Statement of Keiren Wilson, 16 April 2019 paragraph 91: Exhibit VDP2.
[32] Statement of Keiren Wilson, 16 April 2019, paragraph 92: Exhibit VD P2.
Wilson said that towards the end of June 2017 or in early July 2017, Del Giglio had 20 ounces of cocaine sent to Bridgestone Tyres Smithfield. Wilson was given 7 ounces and 4 were given to Matthew Hilton (“Hilton”), 8 to Ufuk Biyikli (“Biyikli”) and 3 to Johnston. Wilson said that he was selling an ounce for $8500 and making $1000 profit. Wilson was aware that Del Giglio had to pay $42,000 into his supplier’s bank account. Del Giglio asked Wilson and La Vista to pay $24,000 and $18,000, respectively, into a bank account. Wilson warned Del Giglio that if he deposited $42,000 into a bank account it would come up with a red flag and he refused to do so.
Wilson did not know if Del Giglio made these payments but he became aware that Del Giglio ‘eventually paid off all the debt for his cocaine shipments but he had to use some of his weed money to do so’.[33] Wilson said that in July 2017, he received another 50 pounds of cannabis and once he sold it he gave Del Giglio the money straight away. He would go to Fasta Pasta with no less than $30,000 for every ten pounds sold. La Vista would take out around $2000 as repayment for the loan of $18,000 to Del Giglio.
[33] Statement of Keiren Wilson, 16 April 2019, paragraph 119: Exhibit VD P2.
In early August 2017, Del Giglio told Wilson he was expecting a shipment of 100 pounds of cannabis in several deliveries. Wilson was given 75 pounds over three days and Del Giglio told him that the next 50 pounds would arrive a week later and was for Sergie Brennan (“Serge”) and Wilson would then get 25 pounds the week after that. Wilson said that on the last Sunday in September 2017, Del Giglio went directly to Matthew Cusick (“Cusick”) and took the $75,000 that Cusick was going to pay to Wilson. At the end of his statement Wilson asserted that he obtained 200 pounds of cannabis from Del Giglio and paid him $690,000. He also said that he obtained 12 ounces of cocaine at $7500 per ounce and 4 ounces at $8000 an ounce and paid Del Giglio a total of $122,000.
By 24 May 2017, all but one of the cash deposits the subject of the charge had been made to the accused’s bank account. This was well before the date that Wilson alleges that Del Giglio ‘started’ getting cocaine shipped to him in Cairns.
Accordingly, on the prosecution case there is no evidence capable of establishing that the money deposited into the accused’s account on 5 occasions between 7 April 2017 and 24 May 2017 was the proceeds of Del Giglio’s cocaine trafficking.
As a result, the evidence of Del Giglio’s cocaine trafficking is not probative of the source of the cash deposits up to 24 May 2017. A properly instructed jury could not infer that these cash deposits were the proceeds of the crime of cocaine trafficking.
However, the last cash deposit of $20,000 on 15 August 2017 stands in a different position. At this point it is necessary to refer to section 400.12 of the Criminal Code.
Section 400.12 permits the prosecution to charge a single offence where there are two or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against a provision of Division 400. Section 400.12 (2) provides that if a single charge is about two or more such instances and the value of the money dealt with is an element of the offence in question, that value is taken to be the sum of the values of the money dealt with in respect of each of those instances.
By laying a single charge, the prosecution has proceeded in accordance with s 400.12. However, the timing of the individual contraventions assumes significance on the voir dire, given the prosecution contention that the money deposited into the accused’s account was the proceeds of cannabis and/or cocaine trafficking. This requires a careful examination of the evidence as to when that cannabis and cocaine trafficking in fact occurred.
As I have already noted, the only direct evidence that Del Giglio was trafficking in cocaine comes from Wilson and, to a much lesser extent, Johnston. Wilson said that Del Giglio ‘started’ getting cocaine in June 2017. When Wilson did obtain 4 ounces of cocaine from Del Giglio in June 2017, he said he paid $8000 per ounce ($32,000) but when supplied with a further 7 ounces in July at a price of $7500, Del Giglio did not take payment at that time, ostensibly because he wanted to pay his suppliers in cash when they came to Cairns. Finally, Wilson said that when Del Giglio paid his cocaine suppliers he used some of his ‘weed money’ to do so.
Wilson does not identify the accused as the supplier (or one of the suppliers) of the cocaine (or cannabis). Indeed, none of the lay witnesses know of the accused and none identify him as a person with whom Del Giglio has any involvement.[34] Other than the reference to the suppliers being ‘Adelaide people’ there is nothing in Wilson’s statement to suggest that one of them is the accused. On the contrary, Wilson states that Del Giglio told him that his cocaine suppliers were Hells Angels bikies who would attend in person to collect their money.
[34] In contrast, Campanella is known to Gatto and Wilson. Gatto said he met Campanella in early 2017 at Fasta Pasta when Campanella was meeting with Del Giglio. Gatto said that Campanella asked him to take flights to carry cash from Cairns to Adelaide. La Vista said he met Campanella in 2017 when Del Giglio brought him and Frisone to La Vista’s house. La Vista knew Campanella as a person who owned a restaurant in Adelaide but he had not seen Campanella for 30 years. Wilson said that he met “Frank (aka Francesco)” in Cairns at his car yard. Wilson said that Del Giglio had given Biyikli ‘a cannabis connection’ and that person was Frank in Adelaide.
The prosecution also sought to rely upon a series of telephone intercepted communications as circumstantially establishing that the supply of cocaine or cocaine trafficking was discussed with the accused and Campanella and that each were in some way involved. It was contended that these communications proved that the accused believed that the source of the cash deposits was Del Giglio’s cocaine trafficking. Those calls occur between 29 June 2017 and 17 July 2017. [35]
[35] The calls identified by prosecution are 3213, 3229, 3307, 3784, QPS402, 4187, 4548, 5089, 3222, 3244, 3376, 3946, 4145, 4284 and 4983.
In my view, none of the conversations or messages in VDP1 are capable of being used circumstantially to establish that the subject matter being discussed is the shipment of cocaine from Adelaide to Cairns and that the accused is either aware of this, or is in some way involved in it. I do not consider that it is open to infer from the conversations between the accused and Del Giglio (and Del Giglio and others), in which there is discussion about Biyikli’s failure to repay Del Giglio $55,000 loaned to him for the purchase a truck and a chipper, that these were in fact coded conversations about a cocaine debt.[36]
[36] In VDP8, Gatto says: “I am aware that Gary helped his friend, who I know as Johnny the Turk, organise a loan for $55,000 from Ryan Hill. Johnny the Turk wanted to use the money to buy a truck and a mulcher to start a business for his son” [34]
Finally, there is evidence of 10 consignments arriving in Cairns between 1-20 June 2017. On the prosecution case, these are consignments of cannabis, not cocaine. Wilson states that he received 50 pounds of cannabis from Del Giglio in June and left the money he owed Del Giglio for it at Fasta Pasta. Wilson paid Del Giglio $172,500 for the first 50 pounds of cannabis given to him in May and although Wilson does not detail the price he paid for the next 50 pounds, it is open to infer he paid the same or a similar price. This inference is strengthened by Wilson’s statement that he paid $345,000 for 100 pounds of cannabis in early August 2017. Accordingly, on the prosecution case, the likely source of the last payment to the accused in August 2017 was the income generated from the sale of cannabis.
In those circumstances, the evidence capable of establishing beyond reasonable doubt that the $20,000 deposited into the accused’s account on 15 August 2017 was the proceeds of cocaine trafficking is barely probative but highly prejudicial. The prejudice is particularly acute because there is no evidence from which it can be inferred that any of the earlier cash deposits were the proceeds of cocaine trafficking.
Ruling on admissibility of evidence of cocaine trafficking
I rule that the prosecution is not permitted to lead any evidence regarding Del Giglio’s cocaine trafficking operation and is not permitted to invite the jury to infer from the telephone intercepted communications[37] that the subject matter was the supply of cocaine or cocaine trafficking.
[37] 3213, 3229, 3307, 3784, QPS402, 4187, 4548, 5089, 3222, 3244, 3376, 3946, 4145, 4284 and 4983.
However, that does not necessarily mean that the communications are inadmissible as, in my view and for reasons that I will explain, they are circumstantially relevant on other bases.
I have prepared a table, which is annexed to this ruling, in which I have set out all intercepted telephone communications sought to be admitted and have identified which are to be excluded or admitted and where admitted, on what basis and for what purpose. I have highlighted in yellow those conversations which the prosecution asserts relate to cocaine trafficking and how my ruling affects the admissibility of those conversations, or the use to which they can be put.
Evidence of other indictable offences
The prosecution has confirmed that, on its case, the money that was deposited into the accused’s account was the proceeds of cannabis and/or cocaine trafficking but not the proceeds any other criminal activities of Del Giglio.[38] This was an appropriate concession, because there is no evidence that the accused had any awareness of, or involvement in, these activities, nor is there any evidence from which it can be inferred that, at the time of the cash deposits into the accused’s account, those activities generated income for Del Giglio. The prosecution has indicated that it does not propose to lead any of the evidence referred to in paragraphs 2.2.2, 2.2.5, 2.2.6 or 2.2.7 of the accused’s Rule 49 (importation of cocaine, firearms offences, robbery and importation and trafficking of methylamphetamine). Plainly, this evidence is more prejudicial than probative and there is a high risk that the jury might reason that the accused must have been aware of it by virtue of his association or friendship with Del Giglio.
[38] T 202, lines 33-38; T 203, lines 1-5.
Li v The Queen (2010) 199 A Crim R 419
The consequence of my ruling excluding all evidence of Del Giglio’s cocaine trafficking activities is that I do not consider it necessary to resolve the dispute between prosecution and defence regarding the proper construction of s 400.4 (1) (b) (i) and the defence contention that NSW Court of Appeal decision in Li v The Queen (2010) 199 A Crim R 419 (“Li”) is plainly wrong and should not be followed.

I have arrived at that view, because the prosecution contends that the accused believed that the money was the proceeds of cannabis and/or cocaine trafficking but does not contend that the accused held a belief that the money was the proceeds of any other crimes committed by Del Giglio.
Having excluded all evidence of Del Giglio’s cocaine trafficking activities, that leaves only the indictable crime of cannabis trafficking as the evidentiary basis upon which it could be alleged that the accused believed the money was the proceeds of a serious offence. However, I acknowledge that this does not prevent the prosecution putting to the jury that it could be satisfied of the fault element if it was satisfied that the accused believed that the money was the proceeds of serious crimes such as robbery, fraud, blackmail, other drug trafficking activities and so on.[39] There would be no evidentiary basis or support for this belief, but that would not prevent prosecution putting it to the jury. Accordingly, and in deference to the detailed arguments advanced by counsel, I will set out my views.
[39] But not the drug trafficking that has been excluded by virtue of my ruling.
It is the defence contention that the proper construction of s 400.4 (1) (b) (i) is that the physical and fault elements must coincide. In other words, the prosecution must prove (a) that the property is the proceeds of a relevant crime or crimes and (b) it is that crime or those crimes about which the accused held the relevant belief. Accordingly, to prove the belief, the prosecution must prove either the accused’s involvement in the relevant crime or his awareness of it. In so far as s 400.13 does not require the prosecution to prove that a particular offence was committed in order to prove that the money was the proceeds of crime, the defence contends that this is intended to dispense with any requirement to prove that on a certain day a certain person committed an indictable offence, but does not dispense with the requirement that the prosecution must establish the commission of a particular relevant indictable offence.
The prosecution rejects this approach and say that it is inconsistent with the decision in Li. In Li the appellant was convicted at trial of an offence against s 400.3 (1).[40] The particulars of that charge were that between 13 April 2005 and 19 April 2005 Li dealt with money which was the proceeds of crime and which he believed to be proceeds of crime and at the time of the dealing the value of the money was more than $1 million.
[40] The difference between an offence against s 400.3 (1) and 400.4 (1) is that the monetary amount of the former is $1,000,000.00.
The trial centred on $2,641,355 in cash that had been stored in a residential unit in Roseville. This was, on the prosecution case, part of $5 million owing to a man named Alexander Ayala-Serna (“Serna”), a Columbian drug trafficker, being his share of the proceeds from the sale of a very large amount of cocaine that had been imported into Australia in 2004. The prosecution case was that the appellant came to Australia in April 2005 in order to collect the money to take it back to Columbia. He collected the money and caused $400,000 to be remitted overseas so, that at the time of his arrest he was in possession of $2.6 million. It is necessary to set out the background to the charge in more detail as it is relevant to the arguments being advanced by counsel in this matter on the construction of s 400.4 (1), and also the admissibility of the telephone intercepted conversations generally.
In 2004 Serna agreed to sell to a man called Tono 300 kilograms of cocaine for which he was to be paid $5 million. Serna was to collect that money in Australia. In November 2004 John Viana (“Viana”) came to Australia and met with Serna who had arrived a few days later. Viana rented the Roseville unit and organised a motor vehicle into which the money was to be placed by the purchasers of the drugs. A day later Viana recovered the motor vehicle and met with Serna at the unit. The money was taken out of the vehicle and stored in the unit. At that time the amount of money was $5,050,000. Serna told Viana to contact his father (Viana senior) to find a way to send the money to Columbia. Viana told Serna that Viana senior had arranged for someone in Miami to get a contact in Australia to repatriate the money for a commission of 25%. On 6 December 2004 Serna flew out of Australia to Chile leaving Viana to look after the money. Viana later told Serna that arrangements had been made to have the money sent from Australia in one amount.
On 1 January 2005 John Iglesias (“Iglesias”) arrived in Australia from the United States and joined Viana in the Roseville Unit. On 6 February 2005 Viana left Australia leaving Iglesias in control of the money. The two men were in frequent telephone contact with each other and the AFP intercepted those calls. The intercepted calls which took place between 10 February 2005 and 16 April 2005 revealed that the two men were in regular contact with each other and with Viana senior in relation to the money in the unit. The prosecution case was that Viana senior was arranging for someone to meet with Iglesias and collect the cash. In a call on 18 February 2005, the prosecution alleged that Viana gave Iglesias detailed instructions as to how the cash should be handed over in a restaurant car park.
On 26 February 2005 during a phone call Viana told Iglesias “Another amigo has already left to go there’. The prosecution asserted that this was a reference to the person organised by Viana senior to have the money taken to Columbia. On 8 March 2005 there was a conversation between Viana and Iglesias that referred to a Chinese girl in which Viana said ‘All of them are good. Everything is well organised with those bloody bitches’. The prosecution alleged that this was a coded reference to the appellant and his wife who are Chinese. They left Hong Kong for Sydney on 12 April 2005.
On 13 April 2005 Iglesias telephoned the appellant and during the conversation the appellant asked Iglesias when he was going to bring him the ‘food’. Iglesias said that they would have to meet up before there could be any exchange and they arranged to do so. Later that day Iglesias told Viana he would be sending the money that day and that he had met ‘with that bandit of a girl and will be seeing her’. The prosecution contended that this was a reference to the appellant. There was a further exchange as follows:
QIglesias: Give him the whole holiday package, the 27 days
AViana: No, no half of it mate.
On 13 April 2005 AFP surveillance observed Iglesias meet the appellant and they travelled to the Roseville unit where Iglesias gave the appellant two backpacks that contained $1.35million. The appellant took these to the hotel where he was staying. Shortly thereafter Iglesias told Viana that he had handed half “the holiday package” over and would hand the rest the next day.
On 14 April 2005 Iglesias met the appellant in Haymarket and again travelled to the Roseville unit where the appellant collected a further two bags. Again he returned with these bags to his hotel. Shortly thereafter Iglesias spoke to Viana and said “thank god the nightmare is over”.
Later that day the appellant and Iglesias spoke together. The appellant told him that there was some money missing and Iglesias said “you are short by $100,000 pesos”. The appellant told him to count it well and call him. Not long afterwards Iglesias arranged to meet the appellant at Haymarket. When they met, Iglesias handed a bag to the appellant. It was the prosecution case that this bag contained the missing $100,000. Later the appellant remitted about $400,000 overseas in order to satisfy business debts he had incurred. He had a number of businesses in Venezuela including a restaurant and a real estate agency. On 18 April 2005 Igelesias left Australia. On 19 April 2005 the appellant was arrested in possession of $2.26 million. It was the appellant’s case that the money belonged to him and was the proceeds of real estate that he had sold in Venezuela.
The appellant appealed his conviction on a number of bases. For present purposes the only relevant grounds of appeal were that the trial Judge had erred in permitting the prosecution to refer to ‘tax fraud’ in its closing address as one of the serious crimes from which the accused believed the money was the proceeds. Howie and Hall JJ said that the impugned passage appeared in the context of the prosecutor explaining to the jury that, although it had to prove that the appellant believed that the money was proceeds of crime, it did not have to prove that he believed that it was the proceeds of a particular crime, for example the importation of cocaine into Australia.
The prosecutor said:
…the Crown has to prove that a belief was about a crime, that is a serious crime, but not about the serious crime, being the drug importation, because as you appreciate, there is no evidence in our case that [any of the accused] actually knew either Mr Serna or anything about the cocaine importation…you could not believe anything other than it was the proceeds of some serious crime. Be it a drug transaction, theoretically, or a robbery or a tax fraud punishable by imprisonment, the money must have come from serious illicit illegal activity.
The complaint on appeal was that tax fraud did not necessarily amount to a serious crime and it was unfair and misleading because the appellant had been cross-examined about non-payment of tax in Venezuela. The trial Judge directed the jury in the written directions that to prove the element of belief that the money was the proceeds of crime,
…the Crown need not prove that he believed that the money was derived from any particular offence. It would be sufficient if the Crown proved that he held a belief that the money was derived from an indictable offence such as importation of a prohibited drug contrary to Australian law, the trafficking of prohibited drugs within Australia, robberies, major thefts or the obtaining of monies by fraud or false pretences. These categories are not suggested as being specifically relevant to Mr Li’s actual belief in this case. They are merely examples of the sorts of serious crimes in respect of which Mr Li must have held a relevant belief. [My emphasis].
When summing up to the jury, the trial Judge followed very closely the written directions but added the following:
Now let me give you an example about this. Say for example there was a bikie gang which was in the business of using its motor bikes to transfer drugs and money from place to place in Australia (a not unheard of scenario). And let us say that there was a drop off point at somewhere in Sydney, say a house in Penshurst, to take a random suburb. And one of the team puts a bag full of money in a bedroom in that house and another one of the team is asked to come down from Newcastle and pick that money up. Now the fellow coming from Newcastle might think it was the result of drugs that had been sold in Melbourne, whereas, in fact, the money might be the product of drugs sold in Bathhurst. So it might be an entirely different crime. Or they might have been committing armed robberies and there was a bundle of money from an armed robbery. And the person picking it up thought it was money from drugs. Well, that would not be any defence for him. Provided he believes he is picking up money which is the proceeds of crime, serious crime, then in the way that I have mentioned it, then that will be sufficient proof of this element, element three ‘which he believes to be proceeds of crime’.
Howie and Hall JJ[41] dismissed these grounds of appeal by simply saying they had no merit. This was because:
The only question raised in the trial about the passage in the Crown’s address was whether the Crown was technically correct in suggesting ‘tax fraud’ was a serious crime within the scope of the section. In the end that question did not need to be answered as none of the other addresses raised the issue and the judge used the concept of fraud generally in the summing up without objection.
[41] With whom McFarlan JA agreed.
Their Honours went on to say that the offences referred to in the written directions were given merely as examples of the types of crime the appellant had to believe were the source of the funds before he could be guilty of the offence.
At this point it is important to draw the distinction between the requirement that the prosecution prove that the money is the proceeds of an indictable offence and the requirement that the prosecution prove that the accused believed that the money was the proceeds of an serious offence. In Li the prosecution could prove that the money was the proceeds of a substantial drug importation offence. However, what it could not prove, and did not set out to prove, was the accused’s knowledge or awareness of that drug importation. Rather it contended that the appellant’s undisputed possession of such a large amount of money against the background of the circumstantial evidence linking the appellant to Serna, Viana and Iglesias, was such that it could not have been his own money (as he contended in his defence) and he must have believed it was the proceeds of a serious crime.
In other words, to use the trial Judge’s motorcycle gang example, the evidence established that the appellant was part of the team or gang and by reason of that connection and knowledge of the workings of the gang and the sheer volume of cash, he must have held the relevant belief. The motorcycle gang example also made clear to the jury that a mistaken belief about the nature of the serious crime from which the money was the proceeds would not provide a defence. In other words, if the appellant believed it was from an armed robbery but it was, in fact, from drug importation, then that would not be a defence.
Defence counsel argues that the decision in Li is wrong in so far as it is said that the Court decided that there could be a complete disconnect between the crime from which the money is the proceeds and the crime from which the accused believed the money came. In my view, the passages that I have emphasised above demonstrate that neither the trial Judge, nor the Court of Appeal, endorsed the view that there could be a complete disconnect between the crime from which the money was the proceeds and the belief of the accused as to the crime.
The crimes listed by the trial Judge were described by the Court as examples of the type of serious crimes the accused had to believe was the source of the money. The trial Judge explained that these examples were not necessarily relevant to the appellant’s actual belief. The trial Judge’s use in the summing up of the motorcycle gang scenario contextualised his written directions on the fault element and exposed the rationale behind the direction that the jury need not be satisfied that the accused held a belief about a particular crime.
The clear message in the trial Judge’s written directions was that the prosecution need not prove a belief in a particular serious offence and that a mistaken belief regarding the serious offence from which the money was the proceeds was not a defence.
I disagree with defence counsel that the Court in Li endorsed the view that it is not necessary for the prosecution to prove that the accused believed the money to be the proceeds of a serious crime generally particularised.[42] In my view, the Court in Li approved a summing up that directed the jury that the prosecution must prove that the accused believed the money to be the proceeds of an identified indictable offence but not a ‘particular’ offence in the sense of one committed by a certain person on a certain day.
[42] Defendant’s Response to Prosecution’s Further Submissions Re: Elements, paragraph 5.
I refer again to section 400.13:
(1) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of crime, to establish that:
(a)a particular offence was committed in relation to the money or property; or
(b)a particular person committed an offence in relation to the money or property.
(2) To avoid doubt, it is not necessary, in order to prove for the purposes of this Division an intention or risk that the money or property will be an instrument of crime, to establish that;
(a)an intention or risk that a particular offence will be committed in relation to the money or property; or
(b)an intention or risk that a particular person will commit an offence in relation to the money or property.
In Chen v Director of Public Prosecutions (2011) 83 NSWLR 224, the NSW Court of Criminal Appeal considered s 400.13(2). In that case the accused was charged with a contravention of s 400.5(1) which required proof that he dealt with money of the value of $50,000 or more, intending that the money would become an instrument of crime. At trial and on appeal, the prosecution asserted that it was entitled to rely upon an unparticularised crime as vaguely expressed as the evasion of tax, in part, because such a course was permitted by s 400.13. Basten JA held:
First, the proper approach to questions of construction would not readily permit a person to be rendered liable to imprisonment for 15 years (or more in relation to greater sums) by dealing with money with an intention that it will become an instrument of crime, without some conduct capable of constituting an indictable offence being relied upon. To this end, it is unnecessary to identify a particular offence, either terms of timing or of individuals involved. So much is clear from s 400.13. On the other hand, an intention that the money will be used in the course of conduct constituting an indictable offence must be properly proved.[43]
[43] Page 232.
Garling J observed that the terms of s 400.13 had not then been the subject of any decision of a court interpreting its meaning. I pause to note that I have not been referred to any other decision post-dating Chen v DPP which has considered s 400.13. Garling J placed emphasis on the use of the word ‘particular’. His Honour said:
A distinction can be observed, which is an important one, between the phrase ‘an indictable offence’ and ‘a particular offence’. The usage of the different terms provides a clear path to the meaning of the latter phrase.
The prosecution must establish the evidence of a specific intention in the appellant to commit an indictable offence but not a particular offence….
The effect of s 400.13 of the Code is only to excuse the prosecution from proving a particular offence, that is an offence particularised by reference to a person, date, time, place and any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a specific defence to a specific charge.[44]
[44] Pages 244-245.
In my view, these observations apply with equal force to s 400.13(1). In other words, in order to prove that the money or property is the proceeds of an indictable offence, the prosecution must prove the commission of an identified indictable offence, but is excused from proving an offence particularised by reference to a person, date, time, place or any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a specific defence to a specific charge.
In my view, it is a necessary corollary of the application of s 400.13 that the prosecution must prove a belief in an identified indictable offence[45] as being the source of the proceeds, but is excused from proving a belief in an offence particularised by reference to a person, date, time, place or any other specific fact, matter or circumstance which would need to be particularised either in the Information or else to enable an accused to prepare a specific defence to a specific charge.
[45] I note that section 400.11 dispenses with the need to prove a fault element in respect of whether an offence is an indictable offence or may be dealt with as an indictable offence

In my view, neither the trial Judge nor the Court of Criminal Appeal in Li suggested that there could be no temporal limit to the crime(s) in respect of which the money is said to be the proceeds. The Court did not have to consider the issue of a temporal limit because the money in that case was clearly the proceeds of a substantial drug importation that had recently taken place.
What must be borne in mind is that in Li’s case (as in any case) there was an evidentiary basis for inferring the relevant belief. In Li’s case it was the sheer volume of the cash plus the established connection between Li and the other persons involved in the drug importation.
Accordingly, it is my view that the submission that I should find that Li was wrongly decided is misconceived. It is important to emphasise that I have arrived at that view because the decision depended very much upon the facts of that case and the actual complaint on appeal. It is also important to emphasise that the crimes referred to by the trial Judge in his summing up were examples only. It will be an unusual case where the prosecution does not point to a factual or evidentiary basis for the accused’s belief that the money was the proceeds of a serious crime. As Ms Powell said in argument:
…how can you prove that the defendant believed something about something he didn’t know about.[46]
[46] T 198, lines 26-27.
In my view, there will inevitably be a coincidence between the crime(s) and the accused’s belief. That coincidence may arise from the accused’s involvement in, or awareness of, the commission of a serious crime or crimes which results in the obtaining of money. Thus, provided the prosecution can prove that the money was the proceeds of crime and the accused believed that the money he dealt with was the proceeds of a serious crime or crimes, it will not matter if he is mistaken about the particular crime that in fact generated the money. That coincidence may also arise from the accused’s knowledge of the means of the persons who committed the relevant crimes and obtained the proceeds, as a result of which he knows that those persons have no legitimate sources of income. If those persons then paid a substantial amount of money to the accused, the requisite belief may be established. That coincidence may arise as a result of the accused’s knowledge of the criminal activities of the person(s) who gave him the money. That coincidence may arise, as it did in Li, by reason of the sheer volume of the money in the accused’s possession and the proven circumstances in which he came into possession of it and dealt with it.
The examples simply illustrate how the coincidence between the belief and the crime will inevitably be marked out by the evidence in any given case. A close examination of the facts and the decision in Li demonstrates why it is not authority for the proposition that in every case of money laundering a jury should or could be directed in the same terms as the summing up in Li. In light of my ruling on the admissibility of Del Giglio’s cocaine trafficking activity, and there being no evidence of any other criminal activities, it will be a matter for the prosecution at the end of the trial to decide what submission it can realistically put regarding the accused’s belief and the evidentiary basis for that belief. Should the prosecution submit to the jury that it could be satisfied that the accused believed the money was the proceeds of a major fraud, a proposition for which there is simply no evidentiary support, I may well direct the jury to disregard such a submission.
In my view, there must be a temporal limit on the crime from which it is said the money is the proceeds but that will usually arise from the evidence in any given case. For example, if it was alleged in this case that De Giglio had, 20 years previously, robbed a bank of $150,000 but had subsequently earnt income both legitimately and through other criminal activities it would be difficult for the prosecution to prove that any money that he paid to the accused 20 years later was the proceeds of the crime of robbery.
However, on the facts of this case I do not consider the issue of a temporal limit arises. Having excluded the evidence of cocaine trafficking, the evidence in the prosecution case appears to point in only one direction - that the cash deposits were the proceeds of the sale of the cannabis shipped to Del Giglio and were payments for that cannabis.
Admissibility of intercepted telephone communications in VDP1.
In VDP4 and in oral submissions, the prosecution articulated the relevance of each intercepted communication. It was contended that each individual call had circumstantial relevance to the issues in dispute. It was further contended that there was reasonable evidence that the accused had a common purpose with Del Giglio and Campanella to traffic in cannabis and therefore the three intercepted telephone conversations 2695, 4187 and 5089 should be admitted for testimonial purposes.
On the prosecution case, the payments into the accused’s account were payments for the cannabis shipped to Del Giglio,[47] a criminal activity in which it is alleged the accused was complicit. It is the prosecution case that some of the intercepted telephone calls, in conjunction with the other evidence in the prosecution case, establish that the accused was aware of, and involved in, Del Giglio’s cannabis trafficking activities. On the prosecution case, this provides the evidentiary basis to establish that the accused believed that the money he was receiving was the proceeds of the offences of drug trafficking in which he was involved (or of which he was aware).
[47] T 83-84.
In other words, this evidence proves that the accused believed that Del Giglio was paying him from the proceeds of the on-sale of the cannabis that the accused and Campanella had shipped to him. In the alternative the prosecution contends that the evidence establishes that the accused knew about Del Giglio’s cannabis trafficking activities and accordingly believed money sent to him by Del Giglio was the proceeds of those crimes.
In my view, on the prosecution case as described, in order to prove the requisite fault element (belief) there must be evidence capable of establishing that the accused was involved in the trafficking of cannabis to Del Giglio for which he expected and was given payment or was otherwise aware of those activities and that they were a source of income for Del Giglio. [48]
[48] At T 114 -115 prosecuting counsel said: “We need only prove that the accused had an awareness that the money was from the proceeds, or partly from the proceeds of the commission of an indictable offence, but the way in which we establish that is, or includes, evidence that we intend to lead to indicate that the accused had that awareness through his involvement, some involvement, with activity that concerned the sourcing of cannabis from Adelaide, and also included the trafficking of the cocaine in Cairns, and that awareness, the latter, comes through by way of an introduction to the fact that it existed, the evidence of Wilson, and then further includes what we say can be gleaned from the intercepted telephone calls”.
Evidence of the indictable offence of trafficking in cannabis
There is ample evidence in the prosecution case capable of establishing that Del Giglio was purchasing cannabis from persons in Adelaide which was transported to Fasta Pasta in Cairns and then on-sold by him to Wilson and at least one other (Serge). There is evidence that a number of boxes were couriered by Fastway to Fasta Pasta between March and September 2017.[49] Wilson and Johnston give evidence that those boxes contained cannabis and were collected by Wilson and on-sold. Wilson states that he received 200 pounds of cannabis from Del Giglio between March and September 2017 and paid him $690,000 for it.[50]
[49] VD P10 and VD P11
[50] In the statement of Kym Andrew Wall dated 31 August 2019 the price for a pound of flowering head of cannabis in 2017 is estimated to be between $2,000 and $3,000 (17).
Wilson states that he received his first delivery of 25 pounds of cannabis at the end of March and it was delayed because one of Del Giglio’s previous customers had not paid him on time. The inference arising from this statement is that Del Giglio used money from the on-sale of cannabis to pay his supplier(s). Wilson said he paid $3450 per pound for the cannabis and sold it in a week. In the first week of April 2017, on Del Giglio’s behalf, Frisone collected around $86,250 from Wilson at 125 Kamerunga Road. Wilson said that his next 25 pound purchase was around 20 April 2017. Del Giglio had told Wilson that the delay was attributable to him having to pay his Adelaide suppliers in full and because the cannabis took about 8 days to be shipped. Wilson sold the 25 pounds in a week and Frisone collected the money from him at 125 Kamerunga Road.
From the beginning of May 2017, Wilson received 50 pounds of cannabis in instalments, two boxes a day, between the Monday and Thursday. Wilson said he paid $172,500 for the 50 pounds of cannabis and made those payments in several instalments most of which took place at 125 Kamerunga Road. In June 2017, Wilson received another 50 pounds of cannabis from Del Giglio. By this time, Wilson was collecting the cannabis from Fasta Pasta and leaving the money with La Vista or Johnston. The money was always comprised of $50 notes and usually packaged in clear plastic bags.[51]
[51] Wilson said that Del Giglio gave Biyikli a ‘cannabis connection’ and that person was ‘Frank (aka Francesco) in Adelaide who is friends with Gary and is also a member of the “West Fight Club”’. Wilson said he met Frank once.
Is there reasonable evidence of a common purpose in respect of the trafficking of cannabis?
The question of the admissibility of the relevant parts of the three intercepted telephone conversations pursuant to the co-conspirator’s rule, is confined to an examination of the evidence which is said to be reasonable evidence of the common purpose of Del Giglio, Campanella and the accused to traffic cannabis.[52]
[52] Similarly, in relation to the balance of the intercepted telephone conversations, their admissibility will depend on whether the words spoken are relevant to a fact in issue, for example they constitute conduct from which a relevant inference can be drawn. That question is answered by reference to the whole of the evidence in the case and on the assumption that the jury will accept the whole of the evidence.
There is evidence in the prosecution case which would permit a jury to infer that Del Giglio, La Vista, Johnston and Wilson were involved together in an unlawful enterprise involving the shipment of cannabis from Adelaide to Cairns and its subsequent sale in Queensland. In particular, there is evidence that:
1.   Del Giglio had a cannabis trafficking enterprise in Cairns;
2.   Del Giglio sourced cannabis from Adelaide;
3.   39 consignments were sent from Adelaide to Cairns between March and September 2017;
4.   The consignments contained cannabis and were unboxed at Fasta Pasta in Cairns with the assistance of or in the presence of La Vista and Johnston; and
5.   Once unboxed the cannabis would be distributed to Wilson and the proceeds paid thereafter to Del Giglio.
The prosecution contends that the involvement of the accused can be inferred from the receipt of $113,250 during the period in which the consignments were sent from Adelaide to Cairns and the content of the intercepted communications said to have circumstantial relevance. However, there is no direct or objective evidence linking the accused to the obtaining of the cannabis which was sent to Cairns, or to the packaging of the cannabis, the depositing of those boxes at Officeworks Parafield Gardens and Gilles Plains or any payment for the courier service which shipped those boxes to Cairns. The boxes were not seized or inspected by police and there is no forensic evidence linking the accused to the boxes.[53] There is no apparent correspondence between the dates of the consignments, the amounts of cannabis alleged to be in those consignments and the payments made to the accused. In other words, in light of the 2017 price per pound of cannabis, the amounts paid to the accused do not permit an inference readily to be drawn that the accused was being paid an amount that corresponded with the amount of cannabis being shipped. There is no evidence from which it can be inferred that there was an agreement regarding the amount of the accused’s remuneration, or whether it reflected any particular role in the alleged unlawful common purpose which would demonstrate a relevant correspondence between the payments and the consignments.
[53] cf. R v C, S [2018] SASCFC 125.
In considering the admissibility of the three intercepted telephone conversations that the prosecution wish to lead as evidence of the truth of statements made in the absence of the accused, I have had regard to the decisions referred to me by counsel, in particular Ahern v The Queen (1988) 165 CLR 87 (‘Ahern’), Tripodi v The Queen (1961) CLR 1 (‘Tripodi’) and The Queen v Corak (1982) 30 SASR 404 (‘Corak’). The following principles are derived from these decisions.
In a trial of a substantive offence (not being a charge of conspiracy) the co-conspirator’s rule will apply to permit the utterance of another person, made in the absence of the accused, to be led for its truth against the accused, where:
(a)    There is reasonable evidence of an unlawful common purpose between the accused and the person making the statement; and
(b)    The reasonable evidence is independent of the words of the other person the prosecution seeks to lead for their truth; and
(c)    The utterance is made in furtherance of the unlawful common purpose.
The threshold test of ‘reasonable evidence’ of a common unlawful object or unlawful common purpose has been described to mean:
(a) Evidence, which at a minimum, ‘is capable of supporting a finding” of the asserted common purpose;[54] or
(b) Evidence raising at least a ‘real possibility’ of the asserted common purpose.[55]
In Ahern, the High Court observed:
The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term “reasonable evidence” is desirable.[56] [Emphasis added].
[54] R v Tsang (2011) 35 VR 240 at [76].
[55] Corak at [405]-[406].
[56] At 100.
The assessment is to be made on the basis of all of the evidence, including other pieces of admissible circumstantial evidence, that are independent of the subject utterance.[57] The assessment has been compared to determining whether there is a case to answer in that the court is not required to make any assessment of the truth or reliability of any item of evidence or to choose between conflicting pieces of evidence.[58]Consistent with the approach in determining a case to answer and in the approach to circumstantial evidence generally, all inferences favourable to the prosecution that are reasonably open should be drawn[59] and the evidence should be considered as a whole and not in a ‘piecemeal fashion’.[60]
[57] R v Masters (1992) 26 NSWLR 450 at 465-466
[58] R v Masters at [465]; R v Smith (1990) A Crim R 434, 441-3; R v Tsang at [76]–[77].
[59] Question of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1 at [5].
[60] The Queen v Baden-Clay (2016) 258 CLR 308 at [46] – [47].
If there is reasonable evidence it is still necessary for the evidence sought to be admitted to be an act or utterance in furtherance of the common purpose.[61] Acts or utterances ‘in furtherance’ of the common purpose will usually be ‘directions, instructions or arrangements or …utterances accompanying acts’ to further or carry out the common purpose.[62]An utterance which is no more than a narrative of a past event is not made in furtherance of the common purpose.[63]
[61] Ahern at page 100; Corak at 405; Tsang at [75].
[62] Masters at [461].
[63] Tripodi at pages 6-7, Tsang at [42], [79], Masters at [461].
All of the authorities to which I have been referred have considered the co-conspirator’s rule in the context of the admissibility of evidence of common purpose in respect of an element of the offence with which the accused has been charged. This case is one step removed, because the evidence of common purpose sought to be admitted is in respect of an offence that is not charged, but from which the prosecution must prove the money was the proceeds and without having to prove the commission of a particular offence.
Further, if the prosecution can prove that the money dealt with by an accused was the proceeds of an indictable crime, then an accused can be found guilty upon proof of his belief that the money is the proceeds of a serious crime, even if he is not himself part of any common purpose to commit that crime. Counsel were unable to find any decision that has considered the co-conspirator’s rule in such a setting but did not contend that the approach to admissibility should differ.[64] Nevertheless, I consider these distinctions to be relevant when considering whether, in this case, there is reasonable evidence that the accused had a common purpose with Del Giglio and Campanella to traffic cannabis.
[64] T 169, lines 18-38; T 170, lines 1-31.
The need to first determine the admissibility of the remaining intercepted conversations.
In order to determine the admissibility of calls 2695, 4187 and 5089, the parties agree that it is first necessary for me to rule on the admissibility of the remainder of the calls, all of which are said to have circumstantial relevance.[65] This is because the prosecution relies upon those other communications as forming part of the ‘reasonable evidence’ of the unlawful common purpose.
[65] T 203, lines 16-31.
It is first necessary to determine whether any of the remainder of the intercepted communications, considered against the whole of the evidence in the prosecution case, constitute evidence from which it can be inferred that the persons whose statements are relied upon were participants in a cannabis trafficking enterprise.
I will deal firstly with the calls after the date of the receipt of the last consignment, 13 September 2017. Defence counsel argue that evidence of the intercepted conversations after the date of the final consignment (13 September 2017) should be excluded because they are irrelevant unless they disclose a concession by the accused as to his knowledge of, or participation in cannabis trafficking as at the time of the dealing with the money. In other words, these conversations can have no bearing or relevance upon whether the impugned money is the proceeds of crime, and therefore, absent any concession or admission, do not advance the prosecution case as to common purpose or the accused’s belief regarding the source of the cash deposits. Those intercepted conversations occur between 13 September 2017 and 16 November 2017.[66]
[66] Calls 11516, 13692.
I do not consider that the contents of these calls are capable of establishing that the accused was then involved in an unlawful common purpose to traffic cannabis from which it could then be inferred that there was an ongoing cannabis trafficking enterprise.[67] Nor do they disclose any admission by the accused of an involvement in an unlawful common purpose to traffic cannabis either at the time of the calls or previously. Accordingly, I agree with the defence contention that they are not admissible for that purpose.
[67] cf R v C, S [2018] SASCFC 125.
However, there are some calls between the accused and Del Giglio that I consider to be relevant to the jury’s consideration of the nature of the relationship between the accused and Del Giglio, in so far as that relationship appears to include Del Giglio making payments to the accused, the accused assisting Del Giglio to resolve problems to enable him to obtain funds to pay the accused and Del Giglio seeking advice from the accused about monetary matters and the use of emails to communicate about those matters.

The first of those calls is 13692 on 4 October 2017. It is a conversation in which Del Giglio seeks the advice of the accused regarding correspondence from his bank and refers to sending this correspondence to the accused via email and discussing it with him later that evening. The second is call 18223 on 25 October 2017. This call is relevant as the accused advises Del Giglio that he is with ‘Wog’ and Del Giglio then refers to the repayment of the debt by Johnny the Turk (Biyikli). Earlier calls regarding that debt and the accused’s involvement in assisting Del Giglio to resolve the debt, I consider to be circumstantially relevant to the timing of the payments to the accused. In those calls the accused had offered the services of “Wog” to assist in Del Giglio recouping the money he asserted was owed to him by Johnny the Turk
All other third party calls after 13 September 2017, that is calls, between Del Giglio and persons other than the accused, I have excluded as irrelevant or more prejudicial than probative.
I turn now to the calls which the prosecution contends have circumstantial relevance and which, when considered as a whole and in conjunction with the rest of the evidence in the prosecution case, reveal that the accused was involved with Del Giglio and Campanella in an unlawful common purpose to traffic cannabis. I have considered those calls individually, and in combination and in conjunction with the rest of the evidence in the prosecution case, drawing all inferences favourable to the prosecution that are reasonably open. I have determined the admissibility of each call as set out in the accompanying table. Where a call has been ruled admissible in whole or in part, I have set out the uses to which it may permissibly be put.
In my view, whilst many of the calls that I have ruled admissible have circumstantial relevance to the issues in dispute, they do not support a finding of an unlawful common purpose to traffic cannabis and therefore do constitute ‘reasonable evidence’ of the accused’s involvement in the unlawful common purpose of trafficking cannabis. In so ruling, I have had regard to the fact that in many instances, the utterances relied upon do not possess the requisite contemporaneity with events or facts proved by objective evidence. There is no evidence of the content of the emails referred to in the telephone conversations which the prosecution contend are used as a means of covert communication. Having listened to the calls it is evident that Campanella and Del Giglio converse in Italian when discussing innocuous subjects, thus weakening the inference that the use of Italian is for a sinister purpose. There are no explicit or coded references to cannabis in any of the calls between Del Giglio and the accused.
Accordingly, I refuse the application to admit the utterances identified in VDP4 in calls 2695, 4187 and 5089 pursuant to the co-conspirator’s rule.
I have then considered whether the contents of these three calls have circumstantial relevance. I determined that calls 2695 and 5089 are not circumstantially relevant and I rule that they be excluded. I reject the prosecution contention that the utterances on 23 June 2017 in call 2695 by Campanella that ‘here it’s still bad’ and Del Giglio’s response “Yeah I know, yeah. I got 100’ are a discussion about the drug related business involving Del Giglio, Campanella and the accused. 8 consignments of cannabis had been delivered by 20 June 2017 and these utterances appear to bear no relation to the state of Del Giglio’s cannabis supply. The same can be said about the later comment of Del Giglio that ‘you’ll get back on track’ and the references to ‘waiting’ for ‘Roger’. In respect of call 5089, the prosecution contends that this call has circumstantial relevance to the cocaine and cannabis trafficking operation. On the prosecution case, the passage from 1.9 refers to Del Giglio’s cocaine trafficking operation. Consistent with my ruling excluding all evidence of Del Giglio’s cocaine trafficking activities, I refuse to admit that passage. Campanella’s utterance at 2.5 ‘the other week he said go get the boxes’ occurs in this context and Campanella’s next utterance “I haven’t spoken to Johnny in a week’ inferentially suggests that it is Biyikli who has told him to ‘go get the boxes’. Viewed as a whole, the contents of call 5089 have no circumstantial relevance to the cannabis trafficking operation. In relation to call 4187 on 10 July 2017, I agree with the defence submission that, when considered in the context of the objective evidence of the timing of the delivery of the consignments, the contents of this call are not circumstantially relevant to the alleged cannabis trafficking enterprise. This is because there are no consignments shipped on or around 10 July 2017 and the reference to ‘6’ does not coincide with any of the identified consignments or their contents at a time sufficiently proximate to this call. However, for the reasons set out in the accompanying table, I consider part of call 4187 is circumstantially relevant and will therefore be admitted.
I will hear from counsel as to any further applications arising from my rulings.

Session Date Participant 1 Participant 2 Admitted/excluded Ruling – Circumstantial Relevance

524 6/6/17 Del Giglio Johnston Admitted Circumstantially relevant to connect Del Giglio to Fasta Pasta and arrival of Campanella in Cairns

546 6/6/17 Del Giglio Vitale
Campanella Admitted Circumstantially relevant to show connection between Campanella, accused and Del Giglio

1043 11/6/17 Del Giglio Vitale Admitted Circumstantially relevant to show nature of relationship between accused and Del Giglio and accused’s awareness of Campanella’s trip to Cairns

1263 13/6/17 Del Giglio Frisone Excluded Content not sufficiently probative to draw an inference that the accused is one of the boys down south or that the subject matter is the trafficking of cannabis

1709 16/6/17 Del Giglio Vitale Admitted Circumstantially relevant to establish that ‘Roger’ is a reference to the accused and accused’s relationship with Del Giglio and knowledge of his pending visit to Adelaide.

1727 16/6/17 Del Giglio Campanella Excluded Irrelevant as inference arising from content of call 1727, SMS 1729-1732 and 1831 is that Del Giglio is angry with Campanella for being loose lipped in relation to Del Giglio’s sexual liaisons

SMS 1729-1732 16/6/17 Del Giglio Campanella Excluded Irrelevant as inference arising from content of call 1727, SMS 1729-1732 and 1831 is that Del Giglio is angry with Campanella for being loose lipped in relation to Del Giglio’s sexual liaisons

1831 17/6/17 Del Giglio Biyikli Excluded Irrelevant as inference arising from content of call 1727, SMS 1729-1732 and 1831 is that Del Giglio is angry with Campanella for being loose lipped in relation to Del Giglio’s sexual liaisons.

1996 17/6/17 Del Giglio Campanella Excluded Content equivocal and inferentially relates to content of calls 1831, 1727.

2011 17/6/17 Del Giglio Campanella Excluded Content equivocal and subject matter unclear.

2695 23/6/17 Del Giglio Campanella Excluded Not circumstantially relevant to cannabis trafficking enterprise given delivery of 8 consignments in June with last consignment three days prior.

Note: Additional Ruling - Co-Conspirator’s Rule
No reasonable evidence of unlawful common purpose involving accused, not admissible for testimonial purposes.

3053 27/6/17 Del Giglio Campanella Excluded Content unclear and incapable of giving rise to inference that call relates to cannabis trafficking or money owed to accused.

3213 29/6/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and delay attributed by Del Giglio to Biyikli’s failure to repay loan. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3222 29/6/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3229 29/6/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3244 29/6/17 Del Giglio Campanella Excluded Content and subject matter unclear, no circumstantial relevance to cannabis trafficking activities or money owed to accused.

~~3299~~ ~~29/6/17~~ ~~Del Giglio~~ ~~Biyikli~~

3307 29/6/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3376 30/6/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

QPS 402 4/7/17 Del Giglio Hill Admitted Circumstantially relevant to link Hill to Del Giglio; on prosecution case Hill has made two deposits into the accused’s bank account on Del Giglio’s behalf; circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3784 6/7/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio, including reference to “Wog” where “Wog” is later a party to call 18223. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

3946 8/7/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio, including reference to “Wog” where “Wog” is later a party to call 18233. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

4145 10/7/17 Del Giglio Vitale Admitted with exception of passage at 4.2 “Fuckin’ yesterday with a stripper…AV: yeah, I know, I know” Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio, including reference to “Wog” where “Wog” is later a party to call 18223. Not admissible as evidence of Del Giglio’s cocaine trafficking activities. Excluded portion more prejudicial than probative. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

4187 10/7/17 Del Giglio Campanella Admitted in part. Passage from page 3.2 onwards admitted commencing: “GDG: Oh you know what I said…”
Admitted portion circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio. Excluded portion not circumstantially relevant to cannabis trafficking enterprise because no consignments of cannabis were deposited between 10 June 2017 and 10 August 2017. The address to which all consignments were delivered from January 2017 was Fasta Pasta 68 Shields Street and it can be inferred that those sending the consignments were well aware of this by 10 July 2017. Accordingly, the reference to wanting to know the address and something leaving the next day and sending ‘6…to get started’ is not circumstantially relevant to the cannabis trafficking enterprise.
Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

Note: Additional Ruling - Co-Conspirator’s Rule
No reasonable evidence of unlawful common purpose involving accused, not admissible for testimonial purposes.

4284 12/7/17 Del Giglio Campanella Admitted in part. Passage from page 3.6 onwards excluded: “FC: Yeah, that’s right, you know what I mean…” Admitted portion circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s later involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities. Excluded portion irrelevant.

4548 14/7/17 Del Giglio Biyikli Admitted Admitted portion circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio. Not admissible as evidence of Del Giglio’s cocaine trafficking activities.

4983 17/7/17 Del Giglio Campanella Excluded. Not admitted pursuant to ruling excluding evidence of Del Giglio’s cocaine trafficking activities.

5089 18/7/17 Del Giglio Campanella Excluded Not circumstantially relevant to cannabis trafficking enterprise because no consignments of cannabis were deposited between 10 June 2017 and 10 August 2017 and content of call on its face relates to prosecution case that Del Giglio was sourcing cocaine from Adelaide. Not admitted pursuant to ruling excluding evidence of Del Giglio’s cocaine trafficking activities.

Note: Additional Ruling - Co-Conspirator’s Rule
No reasonable evidence of unlawful common purpose involving accused, not admissible for testimonial purposes.

5109 18/7/17 Del Giglio Campanella Excluded. No circumstantial relevance given no consignments of cannabis delivered between 20 June and 21 August 2017.

5247 20/7/17 Del Giglio Campanella Excluded No circumstantial relevance given no consignments of cannabis delivered between 20 June and 21 August 2017.

~~5285~~ ~~21/7/17~~ ~~Del Giglio~~ ~~Wilson~~

5477 23/7/17 Del Giglio Campanella Admitted in part; Passage from page 3.7 GDG “..Anyway. All right. Well look…” up to page 5.5 GDG “ But we’ll – we’ll soon see if he does the right thing or not, like, he starts making money with the truck” and passage from page 6.6 FC “When are you coming down…” to end of call admitted. Excluded portion - no circumstantial relevance given no consignments of cannabis delivered between 20 June and 21 August 2017 and subject matter not identifiable inferentially as cannabis. Admitted portion from page 3.7 (and page 8.3) circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio.
Admitted portion from page 6.6 circumstantially relevant to Del Giglio’s planned trip to Adelaide and subsequent discussions with the accused regarding that trip.

5559 24/7/17 Del Giglio Campanella Excluded. No circumstantial relevance given no consignments of cannabis delivered between 20 June and 21 August 2017 and subject matter not identifiable inferentially as cannabis.

5828 27/7/17 Del Giglio Vitale Admitted in part: Passage from page 13.4 GDG “If your missus is fucking giving you a hard time..” to page 15.1 AV “She’s full on, yeah yeah” excluded.
Admitted portion circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio. Excluded portion irrelevant and prejudicial.

5831 27/7/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio. Circumstantially relevant to Del Giglio’s planned trip to Adelaide and subsequent discussions with the accused regarding that trip.

6479 31/7/17 Del Giglio Campanella Excluded Subject matter unclear; no circumstantial relevance to cannabis trafficking enterprise or payment of money to accused.

6485 31/7/17 Del Giglio Vitale Admitted in part. Passage from 1.3 GDG “Can you please fucking help Frank bro?...” to 1.6 AV “Don’t worry it is all done” excluded. Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio. Circumstantially relevant to Del Giglio’s planned trip to Adelaide and subsequent discussions with the accused regarding that trip. Subject matter of excluded portion unclear; no circumstantial relevance to cannabis trafficking enterprise or payment of money to accused.

6728 2/8/17 Del Giglio Campanella Excluded Subject matter unclear; no circumstantial relevance to cannabis trafficking enterprise or accused’s involvement or payment of money to accused.

6938 4/8/17 Del Giglio Gatto Excluded No circumstantial relevance to cannabis trafficking enterprise or accused’s involvement or payment of money to accused. Prosecution case is that payments to accused were made by cash deposit into a bank account and not by third parties travelling to Adelaide to deliver cash. No evidence that Gatto flew to Adelaide to make a payment to any person.

7315 6/8/17 Del Giglio Biyikli Admitted in part. Passages from page 1.1 GDG “Good mate. That’s it he’s a dickhead…” to page 3.4 GDG “…I’m not racing into anything ‘cause I’m not – I don’t need anyone mate” and page 6.6 UB “Yeah brother. Fucking anyway, you’ve got this chick happening…” to end of call excluded. Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio.
Excluded portion irrelevant.

7704 8/8/17 Del Giglio Campanella Admitted. Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio.
Circumstantially relevant to deposit of consignment in locker on 10 August 2017.

7841 9/8/17 Del Giglio Campanella Admitted
Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio.

8107 11/8/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused and reason proffered by Del Giglio for inability to pay and accused’s involvement in resolving dispute between Biyikli and Del Giglio.
Circumstantially relevant to deposit of consignments in locker on 11 August 2017.

8524 15/8/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused.

8526 15/8/17 Del Giglio Campanella Admitted Circumstantially relevant to timing of final payment to accused, follows on from call 8524.

8530 15/8/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and accused’s knowledge of payment. Follows on from calls 8524, 8526.

8538 15/8/17 Del Giglio Gatto Admitted Circumstantially relevant to timing of final payment to accused and evidence that Gatto made deposit.

8552 15/8/17 Del Giglio
Belinda Riley

Fabio Gatto
Admitted in part. Passage from 5.5 – 5.7 GD “I just paid twenty thousand dollars to someone that I’ve borrowed money off of that, down there, Anthony, just paid him just now. I’m fucked” admitted. Balance excluded. Evidence of the identity of participants to call admissible. Circumstantially relevant to timing of final payment to accused and evidence that Gatto made deposit. Excluded portion irrelevant.

8563 15/8/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused and accused’s knowledge of payment and nature of relationship between accused and Del Giglio

~~8876~~ ~~18/8/17~~ ~~Del Giglio~~ ~~Wilson~~

9131 21/8/17 Del Giglio Vitale Admitted Relevant to nature of relationship between accused and Del Giglio

9377 23/8/17 Del Giglio Vitale Admitted Relevant to nature of relationship between accused and Del Giglio

11516 13/9/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence.

13692 4/10/17 Del Giglio Vitale Admitted Relevant to nature of relationship between accused and Del Giglio. Inference that content of email forwarded to accused is letter from bank to Del Giglio.

14001 4/10/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence.

14105 5/10/17 Del Giglio Devie Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence.

14496 7/10/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence. In the alternative, more prejudicial than probative.

14501 7/10/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence. In the alternative, more prejudicial than probative.

14509 7/10/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

14808 8/10/17 Del Giglio Devie Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

14920 8/10/17 Del Giglio Devie Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence.

Listening Device 635 9/10/17 Del Giglio Hilton Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence. In the alternative, more prejudicial than probative; reference to ‘older Italian guys syndicate’ equivocal and context extremely prejudicial.

~~16119~~ ~~14/10/17~~ ~~Del Giglio~~ ~~Gatto~~

16420 17/10/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

16426 17/10/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

17230 21/10/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

~~17486~~ ~~23/10/17~~ ~~Del Giglio~~ ~~Devie~~

18223 25/10/17 Del Giglio Vitale Admitted Circumstantially relevant to timing of final payment to accused in so far as “Wog” was involved in facilitating that at the accused’s behest and “Wog” is a party to this call in which the debt is mentioned.

18225 25/10/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

~~19962~~ ~~4/11/17~~ ~~Del Giglio~~ ~~Cakebread~~

20261 5/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

21569 9/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

21925 12/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

~~SMS 21927 - 21930~~ ~~12/11/17~~ ~~Del Giglio~~ ~~Campanella~~

22034 12/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

22037 12/11/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

SMS 22398 - 22412 14/11/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

22413 14/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

SMS 22415 - 22417 14/11/17 Del Giglio Vitale Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence

22783 16/11/17 Del Giglio Campanella Excluded No probative value as post-dates last payment and last consignment and discloses no concession by accused as to his knowledge of or participation in criminal activity constituting an indictable offence. Insufficient evidentiary basis to infer that the content of this conversation is about the trafficking of drugs or is in any way connected to the consignments of cannabis the last of which was delivered almost two months prior or the payment of money to the accused.

~~23057~~ ~~17/11/17~~ ~~Del Giglio~~ ~~Frisone~~