Catanzariti v The Queen [2021] SASCA 110 is a judgment of the South Australian Court of Appeal.
The facts
Mr Catanzariti (“C”) was the co-ordinator of a criminal organisation which had the human and financial resources to traffic in cannabis and MDMA (commonly referred to as ‘ecstasy’). The organisation was run along the lines of a well organised legitimate business, involving the transportation of drugs across the state border into Western Australia by road and rail transport.
Included in this criminal organisation as associates were C’s wife, his mother, a brother, a sister and a brother-in- law in addition to others, all of whom were engaged in the receiving, packaging or transporting the illicit drugs.
The police slowly and methodically built a case against C, based on intercepted telephone communications, the observations of the movements of members of the organisation and unexplained income received by C and his wife over a 13 month period. He was ultimately arrested and charged with 4 separate offences of trafficking a large commercial quantity of cannabis and one charge of trafficking a large commercial quantity of MDMA.
The arrest had followed one of the members of the organisation being arrested at the Keswick railway station in possession of a large quantity of cannabis and MDMA in pill form.
C faced 5 charges of serious criminal conduct in all. Charges 4 and 5 were concerned with the cannabis and the MDMA which was seized at the Keswick Railway station and analysed. There was thus no difficulty in proving the weight of the drugs or that they were cannabis and MDMA. The same was not the case for the first three charges.
While they each alleged trafficking in a large commercial quantity of cannabis, the cannabis had never come into the possession of the police, and therefore could not be said to have been found in the possession of a member of the organisation and analysed and weighed, as had the drugs detected at the Keswick railway station.
The DPP set out to build a ‘circumstantial’ case to prove the first 3 charges. An analysis of conversations between the members of the organisation indicated that the drug shipped to Western Australia on each occasion was cannabis – although the drugs were never identified by name, but referred to only in disguised or cryptic terms.
The DPP case would also rely on the detection of the large amount of cannabis in the luggage of one of the associates at Keswick railway station along with a search of the homes of various associates which indicated that there had been activity to process, weigh and package cannabis.
In essence, the DPP sought to prove that C had trafficked in large commercial quantities of cannabis as alleged in the first 3 charges, but could not lead evidence of its physical detection, seizure and analysis to prove its case.
The attempt by the DPP to run its case before the District Court
When the case came before the District Court of South Australia, a judge agreed with C’s defence lawyers that the first 3 charges were ‘doomed to fail’ because it could not be proved beyond a reasonable doubt that an identifiable drug was trafficked on a particular occasion and that it was of at least sufficient in weight as to qualify as an instance of a ‘large commercial quantity’.
On reaching that conclusion the judge ordered what is known as a “stay” on the first 3 charges. The ‘stay’ order permanently restrained the prosecution from bringing the charges concerned on the basis that if they were foredoomed to fail then to attempt to prosecute them was an abuse of the court’s process.
A stay order is one that a court would use only in very rare circumstances, given that the public should expect that serious crime will be prosecuted after charges are brought.
The judgment of the Full Supreme Court
The DPP appealed the stay order to the Full Supreme Court which did not agree that the first 3 charges were doomed to fail and overturned the stay order delivered by the judge of the District Court and remitted the case for trial before a judge different from the one imposing the stay.
The Chief Justice remarked that prosecutions are brought in the public interest and statutory responsibility for the bringing of prosecutions lies with the DPP; and it is the duty of courts to hear and determine criminal proceedings brought before them.
The trial proper
At trial C was convicted. The DPP had proved to the satisfaction of the trial judge that the drug alleged to have been trafficked in the first 3 charges must have been cannabis and in a large commercial amount. The DPP also proved charges 4 and 5.
C then appealed his conviction to the Court of Appeal arguing that the verdict of guilty was unreasonable as regards all charges, but in particular that the circumstantial evidence in support of the first 3 charges was insufficient. Because the trafficked cannabis was never found nor seized by the police and the circumstantial evidence was insufficient to establish the existence, nature and quantity of the substance alleged it was said that the convictions on those counts could not stand.
The judgment of the Court of Appeal
The Court of Appeal dismissed C’s appeal and upheld the verdict of the trial judge as regards all 5 charges. During the course of the appeal it was necessary for the court to address the weight of the evidence, as it was said that the verdict of the trial judge was unreasonable.
C’s lawyers subjected the intercepted conversations to a close forensic analysis to demonstrate that each conversation was open to innocent explanation. It was open to make this argument because of the disguised and cryptic nature of the conversations intercepted.
However the Court of Appeal observed that the strength of circumstantial evidence lies in its combined force and not in individual strands. The intercepted calls could not be examined in isolation from the rest of the evidence led. The probative value of circumstantial evidence lies in its capacity to strongly affect the probability or improbability of a particular fact in issue. As each item of circumstantial evidence is put in place it strengthens the strength of the other items of circumstantial evidence and the inference it supports is more clearly revealed.
Comment
The case is illustrative of the resources required by the police to investigate, and the DPP to prosecute, serious and relatively sophisticated and well organised criminal conduct.
It also illustrates that resources must be accompanied by an appropriate persistence to prosecute a case which has a reasonable prospect of conviction and it is otherwise in the public interest that it be so prosecuted.