DPP v CAMPILLO [1999] NSWSC 1294

New South Wales Supreme Court CITATION : DPP v CAMPILLO [1999] NSWSC 1294 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 13147/1998 HEARING DATE(S) : 10, 11, 12 November 1999 JUDGMENT DATE : 24 December 1999

PARTIES : Commonwealth Director of Public Prosecutions - Respondent Jose Manuel Campillo - Applicant JUDGMENT OF : Smart AJ

COUNSEL : A B O'Sullivan for DPP B Stratton QC & G Jones for Campillo SOLICITORS : Commonwealth Director of Public Prosecutions George Sten & Co CATCHWORDS : Possessory title to moneys seized; value thereof; whether provision for reasonable legal expenses should be made based on possessory title with no other likely claimant; ceiling placed on such expenses by value of possessory title at date of hearing ACTS CITED : Prceeds of Crime Act 1987 (Cth) Customs Act 1901 CASES CITED : Gollan v Nugent (1988) 166 CLR 18 DECISION : See detailed orders of 24 December 1999

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

No 13147 of 1998

SMART AJ

23 December 1999

Commonwealth Director of Public Prosecutions v Campillo JUDGMENT 1 Jose Manuel Campillo seeks an order whereby he has access to the sum of $552,500 AUD currently held by the Australian Federal Police (AFP) and previously held by the Australian and New Zealand Bank to meet past legal expenses and the reasonable expenses of his forthcoming trial on serious drug charges. 2 From May 1998 until his arrest on 7 December 1998 Mr Campillo was under the joint surveillance of the AFP and the Australian Customs Service (ACS) along with Julian Del Prado Montero, a Spanish citizen residing in Spain and Beatriz Betes-Suarez Gonzalez, a Spanish citizen, residing in Spain, who travelled to Australia in November 1998. 3 According to the defendant, by pre-arrangement, two male agents of Mr Del Prado met with him at the Hilton Hotel, Adelaide on 12 July 1998 and handed him a bag containing $552,500. He did not know the names of the agents. The defendant stated that he had received this money upon the basis that he would transfer it to Canada and invest it there on behalf of Mr Del Prado. The defendant was to be responsible for the money and its investment. Mr Del Prado wanted an annual return on his capital of 20 per cent. The defendant was to receive a commission of 3 per cent of the capital invested. 4 On 13 July 1998, at a coffee shop in Adelaide, the defendant met Frank Zotti who was carrying a silver attache case. They left the shop and walked towards a white BMW, with the defendant carrying the attache case which he placed in the boot. The men drove away. A short time later the defendant dropped Mr Zotti off at the King William Street Adelaide Branch of the ANZ Bank. Mr Zotti was carrying a black briefcase. Zotti entered the bank, produced $552,500 in cash, deposited it at the bank and signed, as applicant, the instructions to telegraphically transfer the cash to the Canadian Imperial Bank of Commerce account No. 0242918 for the credit of a company named International Capital Income Investment Limited (ICIIL). The defendant had written these details on a piece of paper for Zotti and placed it in the briefcase with the cash. 5 Following Mr Zotti's departure from the Bank, an Ion Scan examination of the $552,500 revealed traces of cocaine hydrochloride. On 13 July 1998 the Police executed a search warrant pursuant to s.3E of the Crimes Act 1914 on the ANZ Bank and seized the $552,500. 6 Zotti was a financial consultant. He had worked for the Australian Taxation Office for about 9 years and was dismissed for doing private tax work while an employee. He had established his own business with much of his work being for those in the lower income bracket. He sorted out their problems which were often quite basic. He operated from his home and in an informal way. He also had a Security Guard Licence. According to Mr Zotti, the defendant introduced himself at his soccer club and they spoke to each other a number of times. About two weeks later he told Mr Zotti that he had a requirement to transfer some money overseas and asked Mr Zotti if he would carry out some transfers for him, explaining that there would be large amounts. Mr Zotti agreed. He was told that the moneys (or some of them) were the proceeds of house parties in Sydney. The money was to be sent to "the other brother or other partner." He did not question this explanation. He knew the defendant only as Joe and Jose, and did not know his address or other details. Later in their relationship he had a mobile telephone number through which he could contact the defendant. 7 Between 30 March 1998 and 13 July 1998 on some eight other occasions Zotti received large sums of money from the defendant to send overseas. The defendant contacted him, advised that there was money to be sent overseas and they arranged to meet. At the meeting or a little later the defendant handed him a suitcase or other bag or case containing the cash and written instructions as to where and to whom the money was to be sent by telegraphic transfer. One transfer was to Mr Del Prado Montero. Mr Zotti received a fee for carrying out each transfer. The transfers were effected through different banks and branches. Throughout this whole process Mr Zotti asked no questions as it was none of his business. Nor were any suspicions aroused on his part. He just carried out his instructions. 8 Mr Zotti insisted that he was not the owner of the $552,500 and that he did not know who owned the money. He did not know if the defendant owned the money or any of it. 9 Detective Constable M J Garrick stated that he told Zotti on 14 July 1998 that the owners of the moneys or their lawyers should contact the AFP. Detective Garrick said that on 13 August 1998, Zotti telephoned him and advised that he had been contacted by lawyers from overseas who wanted proof that he had delivered the moneys to the ANZ Bank and that the AFP had seized the moneys. Detective Garrick reminded Zotti that the money was not his, a point with which he agreed. Detective Garrick stated that he would only deal with the true owners or their solicitors who should contact the AFP. By fax dated 20 August 1998 Zotti repeated his request for written confirmation of the seizure of the moneys from the ANZ Bank and stated "you can add that you are awaiting contact from the owners. I did receive a phone call confirming once you organise this confirmation you will be contacted by owners within 7 days." Zotti telephoned Mr Garrick on 27 August 1998 seeking a letter of confirmation and again claiming not to be the owner of the money, not to know who the owner was or where the money came from. Zotti was again told to have the owners contact the AFP. The defendant gave evidence that he had Mr Zotti make inquiries on his behalf. The defendant said that he made no inquiries himself. 10 On 21 July 1998 a man calling himself Orlando Cueter inquired by telephone of Mr Parkin, District Manager of the ANZ Bank, Adelaide as to the whereabouts of USD492,277 to be sent to Canada in favour of ICIIL on 13 July 1998. He wanted to know what the delay was. He supplied his home telephone number in Toronto and a number at which he could be contacted in Florida on the following day. Later on 21 July 1998 Mr Parkin advised the man calling himself Orlando Cueter that the Australian Federal Police was holding the money. Cueter replied that he did not want anything to do with the money as he was only acting on behalf of a client who could not speak English. As soon as Cueter was told that the AFP had the money he wanted to end the conversation. The defendant said that the name Orlando Cueter meant nothing to him. 11 On 2 September 1998 a person identifying himself as Mr David Hall, an Adelaide solicitor who said that he was acting for Mr Del Prado regarding the seizure of moneys spoke by telephone with Detective Sergeant V J Lynch. A meeting was arranged for the following day. At that meeting Mr Hall claimed to be acting for an overseas agent. When asked who was the agent he was unable to provide any details. He claimed that he was acting on the basis of a telephone call from an overseas agent on the previous day. He was awaiting a letter of authorisation from his client. He indicated that earlier that day he had received a facsimile copy of an ANZ Requisition for Overseas Transfer and a facsimile copy of a s.3E Search Warrant for 6 Albion Terrace, Campbelltown, South Australia occupied by Mr Zotti. Mr Hall stated that he was acting on behalf of International Capital Income Investment Ltd. When asked, Mr Hall did not know who were the persons who represented this company. He seemed surprised when asked if his overseas agent was in Canada and did not answer. Mr Hall said that he did not know Mr Zotti. Detective Sergeant Lynch declined to provide any further information without a letter of authority from his clients indicating who they were and whether they were the owners of the moneys. Mr Hall accepted this. He was to return with a letter of authority and further instructions. He has not done so. The defendant said that he had his associate, Mr A Carracia speak to Mr Hall about the AFP seizing the money and its recovery. 12 Some of the material referred to in paragraphs 9, 10 and 11 was initially rejected. However, its relevance later became apparent and it was admitted at the commencement of the address of Mr O'Sullivan for the DPP. 13 From July 1998 to December 1998 there were many discussions between the defendant, Gonzalez and other persons located in Spain and Columbia. On 5 December 1998 a 52 foot ketch called the "Maeva Chiqui", captained by Gregory Paul Meggett arrived in Coffs Harbour. On 6 December 1998 Gonzalez and the defendant drove to Taree, collected a boat trailer stored there and continued to Coffs Harbour, arriving on 7 December 1998. Later that day, Meggett lowered a Boston Whaler boat into the water, detached it from the "Maeva Chiqui" and piloted it to a boat loading ramp where the defendant and Gonzalez were waiting. The three men loaded the Boston Whaler onto the boat trailer. They were arrested shortly thereafter. 14 The Boston Whaler was searched and 225 packages were found concealed in its hull. Each package contained 1 kilogram of cocaine in bulk weight. 15 The defendant was charged with three offences