R v CERULLO AND SOUKOULIS [2003] NSWCCA 201

New South Wales Court of Criminal Appeal

CITATION : R v CERULLO AND SOUKOULIS [2003] NSWCCA 201 HEARING DATE(S) : 27 March 2003 JUDGMENT DATE : 31 July 2003

JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Buddin J at 81 DECISION : In each case; i) Dismiss the appeal against conviction; ii) Grant leave to appeal against sentence ; iii) Dismiss the appeal against sentence

CATCHWORDS : Criminal law - Customs Act s233B - knowingly concerned in the importation of(not less than a traffickable quantity) of cocaine - sentence of 12 yrs imprisonment not excessive - Evidence - sufficient nexus to make it more than propensity evidence - errors by counsel - opinion evidence as to competence unlikely to be admissible Regina PARTIES : Toni Cerullo Dimitrios Soukoulis FILE NUMBER(S) : CCA 60059/02; 60060/02 COUNSEL : Crown: GJ Bellew Appellant: BKH Donovan QC SOLICITORS : Crown: Commonwealth Director of Pubic Prosecutions Appellant: Tully & Co

LOWER COURT District Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Hock DCJ JUDICIAL OFFICER :

38

IN THE COURT OF CRIMINAL APPEAL 60059/02 60060/02

SPIGELMAN CJ HULME J BUDDIN J

29 July 2003 R v Toni CERULLO R v Dimitrios (Jim) SOUKOULIS Judgment 1 SPIGELMAN CJ: I have read the judgments of both Hulme J and Buddin J in draft. I agree with Buddin J on Ground 2. Otherwise, I agree with Hulme J and with Buddin J's additional observations on Ground 10. I agree with the orders proposed by Hulme J. 2 HULME J : On 26 September 2001, after a trial lasting a number of days, the abovenamed Appellants were convicted of being, between about 19 November 1999 and about 23 December 1999, knowingly concerned in the importation into Australia of prohibited imports, namely narcotic goods consisting of a quantity of cocaine being not less than the trafficable quantity thereof. 3 On 8 February 2002 Judge Hock sentenced each of the Appellants to imprisonment for 12 years including a non-parole period of 8 years. 4 Both Appellants have appealed against their conviction and sought leave to appeal against sentence. The grounds of appeal of each are in the same terms and are as follows:- 1. The jury's verdict was unreasonable. 2. Her Honour erred in admitting Exhibit J on the trial being a telephone call between the accused Soukoulis and a person named Alex on 25 November 1999 at 12:16:13 hours. 3. Her Honour erred in: (a) admitting; and (b) not, when directing the Jury, withdrawing from their consideration evidence of the electronic transfer of Australian $28,885.40 by Eleftheria Pappas in Adelaide to Gigel Bosca in Germany on 16 December 1999. 3A Her Honour erred in not, when directing the Jury, withdrawing from their consideration, evidence of the electronic transfer of Australian $18,743.00 by Eleftheria Pappas in Adelaide to Toni Raffella Racerullo in Germany on 16 December 1999. 4. Her Honour erred in directing the jury as to a not guilty verdict. 5. Her Honour erred in directing the jury as to an element of the charge, namely being knowingly concerned in the importation of prohibited goods. 6. Her Honour erred in directing the Jury that all of the evidence admitted on trial was available to be used by them against the accused Cerullo and the accused Soukoulis. 7. Her Honour erred in directing the Jury as a matter of practical reality the verdict in respect of the accused Cerullo would be the same as the verdict in respect of the accused Soukoulis. 8. Her Honour erred in not fully or adequately putting the defence case to the jury. 9. The trial miscarried as a result of inadequate Counsel for the Appellant. 10 The sentence imposed upon the Appellant was manifestly excessive. 5 In written submissions filed on behalf of the Appellants, ground 1 was abandoned. However, before proceeding to the other grounds it is convenient to provide an outline of the Crown case. On 23 December 1999, a parcel containing cocaine was delivered to one Szelenczy at premises at Rose Bay, Sydney. There was evidence that the Appellants were there at the time although they left within minutes thereafter. Shortly after that, the police raided the premises and found the parcel, still unopened, and a sum of $1,000 on a table in the lounge room. Mr Szelenczy had a further $1,100 in his hand. There was evidence from Detective Critchlow (who was encouraged, without objection, to give a deal of hearsay evidence) that the undercover agent who had delivered the parcel had not seen the money there at the time of delivery but there was no evidence as to the extent of the latter's opportunity for observation. It seems that the parcel had been posted from Frankfurt, Germany at 8pm (Frankfurt time) on 15 December 1999. The name of the sender on the airways bill for the parcel wasfictitious. 6 Mr Szelenczy had only recently returned to Australia from Frankfurt. It was accepted that he had left Frankfurt on 15 December 1999, at 11.55 pm (Frankfurt time) and had himself posted the parcel at about 8 pm (Frankfurt time). 7 In circumstances described in more detail below, on 16 December in Adelaide an associate of the Appellants received from Mr Soukoulis' accountant, a cash cheque in the sum of $22,300. The funds were, in effect, debited against funds of one or both of the Appellants. On the same day in transactions extending over some hours but concluding at about 7 pm, associates of the Appellants sent from Adelaide two amounts of money, one of approximately $19,000 and the other approximately $28,000. The funds were addressed separately to Toni Raffela Racerullo and Gigel Bosca, in Frankfurt. 8 Mr Szelenczy's ticket to Frankfurt, then Budapest, then Frankfurt and then Sydney had been tentatively booked by Ms Cerullo, accompanied by Mr Szelenczy, in Sydney on 19 November 1999 when she also paid a deposit of $100 for it. There was, in addition, evidence that on 23 November 1999 Ms Cerullo made a travel booking for herself and the second Appellant from Melbourne to Frankfurt and return. On 8 December 1999 Mr Soukoulis cancelled his booking for a reason irrelevant to the proceedings. The Flight Schedule envisaged Ms Cerullo arriving in Frankfurt on 8 December and departing from Frankfurt at 7.40 pm on 17 December 1999. The ticket suggests these dates and times were adhered to. Ms Cerullo's passport shows she left Frankfurt on 17 December. 9 Also on 23 November, at about 11 am, Ms Cerullo sent a fax from Melbourne to Mr Soukoulis in Sydney which included the words:- "Or: Lets meet at La Meridien Park Hotel centre of town. 10.30 pm 8 Dec. No matter what! TICKET: He should pick up then delay it. Then cancel it. 40% loss average." 10 The fax also contained a list of hotels in Frankfurt. Le Meridien was one on the list. Later that day, Mr Szelenczy met Mr Soukoulis in Sydney and then left Sydney for Europe between about 3 and 3.30 pm. 11 Shortly before the parcel of cocaine was delivered to Mr Szelenczy, he was heard to say to the Appellants, "I've received a phone call. The parcel will be 20 minutes". A few minutes later the three caught a taxi to Mr Szelenczy's flat.