Cerullo v The Queen [2006] HCATrans 296 (13 June 2006)

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Cerullo v The Queen [2006] HCATrans 296 (13 June 2006)

Last Updated: 28 June 2006

[2006] HCATrans 296

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A38 of 2005

B e t w e e n -

PIETROANTONIO CERULLO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

GUMMOW ACJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 JUNE 2006, AT 9.38 AM

Copyright in the High Court of Australia

GUMMOW ACJ: The applicant was convicted at a jury trial in the Supreme Court of South Australia presided over by Duggan J of possession of 219 kilograms of cocaine worth $31.7 million. It was found in a trailer in a unit of which the applicant was the sole occupier and which was leased by him in a false name. The Court of Criminal Appeal (Gray, White and Layton JJ) dismissed an appeal.

When the applicant’s application for special leave to appeal was called on for oral hearing before Gummow and Hayne JJ on 10 February 2006, the applicant applied for and obtained an adjournment. The applicant was ordered to file any further submissions within 28 days. None have been filed.

It is appropriate to deal with the matter on the papers.

The applicant’s argument centres on two keys to the trailer. The applicant alleged that these keys had been planted on the applicant by police officers, who denied this. The applicant now contends that in view of this controversy, and in view of deficiencies in what the police did in relation to the identification and recording of the keys, the jury should have been directed that it could not find beyond reasonable doubt, as a matter of law, that the applicant had possession of the keys. This argument must fail: no additional direction was asked for, there was evidence on which the jury could find that the applicant had possession of the keys, and the jury was told not to find possession unless convinced beyond a reasonable doubt. As the Court of Criminal Appeal said, this was probably excessively favourable to the defence.

The applicant also argued that the trial judge left open an impermissible line of reasoning: namely that circumstantial evidence unrelated to the issue of the keys could be used in combination with the evidence about the keys to reach a conclusion that the applicant had possession of the keys. Again, no direction was sought, and it was for the jury to decide what, if any, parts of the other evidence had weight on the issue of possession of the keys.

The remaining grounds in the draft Notice of Appeal are directed to the conclusion that the verdict was unsafe and unsatisfactory. Those grounds must fail, since there was a strong circumstantial case against the applicant.

There are insufficient prospects of success in an appeal to warrant the grant of special leave. The application is dismissed.

Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish the disposition signed by Heydon J and myself.

AT 9.41 AM THE MATTER WAS CONCLUDED