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R v Zotti

R v Zotti

Case [2002] SASC 164 24 May 2002

Breach of Contract

Unconscionable Conduct

Unjust Enrichment

Criminal Law

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R v ZOTTI
[2002] SASC 164
Court of Criminal Appeal: Prior, Lander and Gray JJ

PRIOR J: I agree that this appeal should be dismissed. I agree with the reasons given by Justice Lander for rejecting the second ground of appeal and refusing to allow further evidence to be admitted.
With respect to the first ground of appeal, I think the direction given by the trial judge was not erroneous.
At the beginning of the summing-up, the trial judge directed the jury that the prosecution had to prove beyond reasonable doubt that the appellant had disposed of money. His Honour described that as the first element that had to be proved. His Honour identified, to the jury, the allegation made by the prosecution that the money was disposed of by sending it overseas by telegraphic transfer. In relation to each count, the trial judge said that that element had to be proved beyond reasonable doubt. His Honour then directed the jury that as a matter of law, that if it had been proved that telegraphic transfers of money were sent by the accused overseas that would amount to a disposal of money. His Honour then said:
“Secondly, the second element is, that the prosecution, if this is proved must show that the money is reasonably suspected of being the proceeds of crime. So you the jury have to have a reasonable suspicion that that money which was sent off in relation to each count was the proceeds of crime. That fact does not have to be proved beyond reasonable doubt, namely, that it was the proceeds of crime. You as a jury merely have to have a reasonable suspicion about it.
I also direct you in relation to that element of the reasonable suspicion that you have to have, the suspicion has to be that it came from the importation of illicit drugs, not just any unlawful activity. You, using objective standards as a jury have to reasonably suspect that that money which was sent overseas in relation to each count is reasonably suspected of having been the proceeds of crime, namely the importation of illicit drugs. ....
If those two elements are shown to exist, one being proved, beyond reasonable doubt, namely the telegraphic transfers, and one by a reasonable suspicion that you hold about that money, then the onus shifts to the accused. The ball passes to him. The accused then has to satisfy you that he did not suspect that this money came from some form of unlawful activity. He has to prove that to you.
Secondly, if he does prove that to you, and convinces you of that fact, bearing in mind the position he was in, he has to prove to you that that belief he held was a reasonable one. That also has to be proved to you. As you can see that’s a very large departure from the general principle that the prosecution have to prove every element of the charge beyond reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Zotti

Details

AGLC: R v Zotti [2002] SASC 164
Case: [2002] SASC 164
Decision Date: 24 May 2002

CaseChat Overview and Summary

This appeal concerns the conviction of the appellant, Mr Zotti, on nine counts of disposing of money suspected of being proceeds of crime contrary to section 82 of the Proceeds of Crime Act 1987 (Cth). The appeal raises two issues: first, whether the trial judge erred in directing the jury that proof of a reasonable suspicion that the monies were proceeds of crime need not be proved beyond reasonable doubt; and second, whether the trial judge erred in directing the jury that the suspicion about the provenance of the monies was that they were suspected of being the proceeds of 'illicit drug' importation rather than the particularised 'importation of narcotics'. The appeal was dismissed.

The first issue was whether the trial judge erred in directing the jury that proof of a reasonable suspicion that the monies were proceeds of crime need not be proved beyond reasonable doubt. The Court found that the trial judge did not err in this regard. The Court found that the prosecution needed to prove beyond reasonable doubt that the appellant disposed of money and that that money may reasonably be suspected of being the proceeds of crime. However, the reasonable suspicion must be determined by an objective criterion and the prosecution need not prove beyond reasonable doubt that the jury might reasonably suspect the money of being proceeds of crime. The Court found that the trial judge's direction on this point was consistent with the authorities.

The second issue was whether the trial judge erred in directing the jury that the suspicion about the provenance of the monies was that they were suspected of being the proceeds of 'illicit drug' importation rather than the particularised 'importation of narcotics'. The Court found that the trial judge did not err in this regard. The Court found that the trial judge's direction to the jury was clear and that the jury could only have understood the trial judge to be referring to the crime referred to in the particulars on the information, namely the importation of cocaine. The Court found that there was no misunderstanding and that the trial judge's shorthand description had not led to a miscarriage of justice.

In conclusion, the Court found that the appeal should be dismissed. The Court found that the trial judge's directions to the jury were consistent with the authorities and that there was no miscarriage of justice. The Court also found that the appellant's application to adduce fresh evidence should be refused. The Court found that the evidence sought to be adduced was not admissible because it did not qualify as expert evidence.

Orders