40 In the above passage, Hope JA referred to the fact that there were, from the inception, the same parties to the conspiracy. However the authorities make it clear, as indeed was acknowledged in argument, that it is not necessary that each of the alleged parties to the conspiracy be members of it throughout the whole of its duration. See R v Griffiths;[15] R v Simmonds;[16] Saffron v R[17]; R v Ongley[18]. Of course, the fact that there was a change in membership of the alleged conspiracy may militate against the existence of the one conspiracy on the existence of separate conspiracies.
41 The question then is whether the evidence relating to the Lai allegations relates to a different conspiracy to that alleged by the Crown in Count 1, and which the Crown seeks to establish by the evidence relating to the Le allegations. The cases to which I have referred show that it is necessary to determine whether there may be discerned from the evidence a common objective in the conspiracy alleged, together with a relevant nexus between the Lai and Le allegations, in order to determine whether the evidence relating to the Lai allegations is relevant to count as conspiracy alleged. To some extent, the task before me is different to that performed, for example, by the Court of Appeal in Saffron. There the question was whether the evidence, as led at trial, could establish the charge in the presentment. In the present case, the trial has not been commenced. It is necessary for me to assess, on the depositions, whether that evidence, if led, might be relevant to Count 1 of the presentment, as now particularised by the Crown.
42 From the materials contained in the depositions, it is evident that there is a significant nexus between, on the one hand, the Lai allegations, and, on the other hand, the Le allegations. The approach to Lai, and the recruitment of Le by Cox, was directed to the same objective, namely the trafficking of heroin by or through a Drug Squad informer. Each of the three accused charged on Count 1 were members of one of the two units of the Victorian Drug Squad responsible for investigating heroin trafficking. In each instance, the approach was made to a person initially recruited as an informer after the arrest of that person. The corrupt approach was only made after the recruitment of, respectively, Lai and Le as informers, and after they had each performed legitimate roles as informers. Further, I consider that there is a relevant connection in time between the two approaches. Conversely, there is not such a sufficient element of disconnection, that the two transactions should not be seen to be part of the one overall conspiracy. It is alleged that the initial overture to Lai by Cox and Sadler was made in about May 1999. The incident in which Cox and Sadler are alleged to have stolen money from Lai is alleged to have occurred on 21 May 1999. Lai states that before that incident occurred he had decided that he did not want to deal drugs with Cox and Sadler.[19] In the meantime, based on information supplied by Lai, Le was arrested by the Drug Squad in April 1999. After his remand into custody he was recruited as an informer by Sadler and by his superior, Mr Hill. The first corrupt approach by Cox to Le was made on 3 August 1999. Thus, while there is a period of time between the successful attempt to recruit Lai, and the first corrupt approach to Le, the relevant time gap is not substantial. During that period Le had been recruited, and was acting, as an informer for the Drug Squad.
43 Each of the above matters are capable of establishing a nexus between the Le allegations and the Lai allegations. There are, of course, some factors which are dissimilar in the two allegations. For example, the type of transaction which was proposed to Lai (profit sharing) was different to the transaction that was proposed to Le (a sale to the informer). The initial recruitment as an informer of Lai was by Cox and Sadler, and of Le was by Hill and Sadler. However, those factors are not, in my view, of such moment that a jury could not properly infer that the two transactions sprang from the one common origin, namely, a corrupt scheme to traffick heroin through persons arrested as drug traffickers and later cultivated as informers to the Drug Squad.
44 There is no direct evidence which implicates Ian Ferguson in the unsuccessful attempt to recruit Lai as the person through whom to traffick heroin. That circumstance may, ultimately, persuade a jury that there was not on foot the one continuing conspiracy throughout the period charged. However, that factor does not necessarily lead to the conclusion that there was not the one conspiracy in existence. As I have stated, the authorities make it plain that the same conspiracy can subsist, notwithstanding that one or more members of it are not parties to the conspiracy throughout the whole of its duration. A member of the conspiracy can join it after its inception, and another member can leave it while the underlying combination is still on foot.
45 For those reasons, and based on the matters contained in the depositions, I reject the application made on behalf of Cox and Sadler that the evidence of Lai should be excluded on the grounds it is incapable of establishing, or being irrelevant to the proof of, the conspiracy charged and alleged by the Crown.
(2) OTHER EVIDENTIARY ISSUES
46 In the course of argument concerning the applications by Cox and Sadler for separate trials on Count 1, it was contended that prejudice would occur to those two accused in a joint trial because of evidence which the Crown proposed to lead against the co-accused, Ian Ferguson. Counsel for Ian Ferguson had foreshadowed objecting to the admissibility of much of that evidence. For those reasons it was appropriate, in the context of the present application, to determine the admissibility of that evidence.
47 However, a significant part of the dispute between the parties as to the admissibility of that evidence was ultimately resolved by agreement between the Crown and counsel for Ian Ferguson, without the need for decision by me. In particular, and with one exception, the Crown and counsel for Ian Ferguson resolved the dispute as to which evidence might be led as to the dealings between Ferguson and Duy Le which did not involve the trafficking of heroin. It is therefore only necessary for me to decide the admissibility of that one remaining matter. Further, and in the context of the same discussions, it emerged that objection would be taken to the Crown adducing evidence as to the finding in the possession of Ferguson, in November 2002, of a copy of a letter by the National Australia Bank to Cox dated 11 July 2001. It is also convenient for me to determine the admissibility of that evidence at this stage.
(a) Ian Ferguson - drink driving charge
48 The Crown proposes to call evidence that, in early 2001, in the course of a conversation between them, Ian Ferguson told Duy Le that he had been charged with drink driving and that he had to go to court as a defendant. Ferguson told Le that although he was a police officer he was still required to be alert and could be convicted of drink driving just like anyone else. He also told Le that as a result of the charge he was not allowed to carry a police issue firearm and was in danger of losing his driver licence.[20]
49 Although Ferguson told Duy Le that he was charged with drink driving, in fact it appears that Ferguson was charged with refusing to undergo a preliminary breath test contrary to s.49(1)(c) of the Road Safety Act. The Crown does not propose to adduce evidence as to the circumstances relating to that refusal, other than to prove the fact that the charge had been brought by the informant against Ferguson.[21]
50 The Crown submits that the evidence is relevant for two reasons. First, the evidence establishes that there was contact between Ferguson and Le subsequent to the issue of warrants for the arrest of Le in May 2000. Secondly, the Crown submits that the evidence demonstrates the existence of a relationship between Ferguson and Le which was not restricted to that of policeman and informer, and, in particular, which was a close personal relationship between the two men.
51 Mr O'Doherty, who appeared for Ian Ferguson, did not contend that the evidence is not relevant for either purpose stated by the Crown. However, he submitted that it is not necessary for the Crown to call that evidence in order for the Crown to achieve either of the two purposes for which it seeks to call it. There is a significant body of evidence, apart from the evidence to which exception is taken, which establishes both the fact of contact between Ferguson and Duy Le after May 2000, and the existence of a relationship between the two men which was not confined to that of informer and policeman. Thus, it was submitted that the evidence of the drink driving charge would have little probative value for the Crown. On the other hand it was submitted that the evidence, if admitted, would be prejudicial to the accused.
52 I accept the submissions made by Mr O'Doherty and consider that, in the exercise of my discretion, the evidence to which I have just referred should not be admitted. First, it is not necessary for the Crown to adduce the evidence of the discussion between Duy Le and Ian Ferguson concerning the drink driving charge in order for the Crown to prove a considerable amount of contact between Ferguson and Duy Le after the issue of the warrants for the arrest of Duy Le in May 2000. Further, the Crown is in a position to adduce a significant amount of evidence as to dealings between Duy Le and Ian Ferguson which demonstrated a relationship between Ferguson and Duy Le other than that of police officer and informer, and which is evidence which is not confined to the trafficking of heroin by Ferguson to Duy Le. The Crown intends to lead evidence as to the sale by Duy Le to Ferguson in November 2000 of a second-hand BMW owned by Duy Le. The Crown also intends to adduce evidence as to the sale of cheap alcohol by Duy Le to Ferguson which, it appears, took place from and after about mid-2000. Both of those categories of evidence are supported not just by the assertion of Duy Le, but also by some independent evidence. That evidence demonstrates the existence of a relationship between Duy Le and Ferguson which is quite different to that of a police officer and informer. Indeed, I consider such evidence to be more cogent in proving the existence of such a relationship than the evidence which the Crown wishes to adduce concerning the charge against Ferguson for refusing to undertake a preliminary breath test. The conversation adverted to by Duy Le, and to which I have referred, is no doubt one which ought not to occur between a police officer and an informant. However, the happening of that conversation does not necessarily evince the existence, between the two men, of a relationship other than that of policeman and informer. Accordingly, I do not consider the evidence to be of significant probative value for the Crown.
53 On the other hand the evidence, if admitted, would in my view be unfairly prejudicial to Ferguson. The evidence is not simply that of offending by Ferguson against the drink driving legislation. More importantly the evidence is of a refusal to undertake a preliminary breath test when requested to do so by a fellow member of the police. Such evidence might well be construed by the jury as demonstrating a view by Ferguson that, at the relevant time, he was entitled to consider himself above the law. Viewed in that light, the evidence would, in my view, be unfairly prejudicial to Ferguson. For those reasons, it is my conclusion that the prejudicial potential of the evidence significantly outweighs any probative value it might have should it be admitted. Accordingly, I rule that the evidence be excluded.
(b) Admissibility of letter by National Australia Bank to Cox dated 11 July 2001
54 On 14 November 2002 a search warrant was executed at the premises of Ian and Joanne Ferguson, as a result of which a number of items were seized. Among the items seized was a copy of a letter from the business banking manager of the Thomastown branch of the National Australia Bank to Cox dated 11 July 2001, together with a number of documents attached to that letter. The Crown proposes to adduce the letter in evidence against both Cox and Ferguson, but not the documents which were attached to it. Objection has been taken to the admissibility of that evidence on behalf of both Ferguson and Cox.
55 The letter purports to be an indicative letter for the information of the recipient relating to a lending proposal concerning "new commercial premises purchase $1.1M". It sets out the loan structure for such financing including the term, interest rates, and application and service fees. The letter notes that the proposed purchase is "for a specialised property". The letter states that the bank would lend to a value determined by the valuers as the "alternative use", which assumed the failure of the tenant, and the property to be reconfigured to suit a tenant "in a mainstream industry".
56 The attached documents, which the Crown do not propose to tender, make it plain that the premises which Cox intended to purchase, and finance through the National Australia Bank, were then being used as a brothel.
57 On behalf of Ian Ferguson, Mr O'Doherty contended that the letter was irrelevant. He submitted that the document did not evidence any business relationship between Ferguson and Cox and thus would not establish any relevant on-going relationship between the two men after the date borne by the letter.
58 Mr Young, on behalf of Cox, also objected to the admissibility of the evidence. First, he contended that the evidence was irrelevant. He submitted that the evidence did nothing more than establish that Cox was, at the relevant time, investigating the possibility of obtaining legitimate loan finance from the National Australia Bank. Otherwise, the letter proved nothing in relation to the financial means and assets of Cox. Further, the finding of the letter in the possession of Ferguson did not establish that Cox and Ferguson were then co-conspirators to traffick heroin.
59 In addition Mr Young contended that if the letter were admitted in evidence it would occasion Cox unfair prejudice. Cox would be obliged to explain the purpose for which he intended to purchase the property. Otherwise the jury might speculate that the letter indicated that Cox had the financial wherewithal not only to purchase a substantial property, but also to fund the interest payments out of his own pocket. Thus, if the letter were tendered in evidence, Cox would need to show that the proposed business to be conducted at the premises was a brothel which was capable of producing sufficient income to service the loan. Additionally, as the letter was found in the possession of Ferguson, a jury would be led into idle and wrong speculation as to why the letter was in Ferguson's possession. In order to explain the possession by Ferguson of the letter, Cox might need to show that he consulted Ferguson concerning the acquisition by him of a brothel, at a time at which Ferguson was involved in the squad of the police force responsible for regulating the brothel industry. Thus, Cox might need to show that he was seeking to exploit his previous relationship with Ferguson in order to obtain the advice or assistance of Ferguson in relation to the acquisition by him of the property. Mr Young contended that there was a substantial body of evidence establishing contact between Ferguson and his client after Cox had left the police force. In particular the telephone call records in the hands of the Crown would be available to the Crown to prove that there was on-going contact between the two men well after Cox had ceased to be a member of the police force in early 2000. Accordingly, Mr Young submitted that the evidence was of little probative value, but of significant prejudicial potential, should it be admitted in evidence.
60 In response, Mr Leckie submitted that the letter was relevant to establish that there was a relationship of a significant business content between Ferguson and Cox after Cox had left the police force. In particular the letter demonstrates that Cox was consulting Ferguson about a significant loan proposed to be undertaken by Cox, at a time when large amounts of income were being generated by the heroin trafficking by Ferguson to Duy Le. Thus, the evidence is relevant to determining whether Cox was participating in the overall conspiracy at that time.
61 Mr Leckie further submitted that the potential prejudice to the accused was not as significant as that contended for by Mr Young. He pointed out that the business conducted at the premises which Cox proposed to purchase was legitimate. Any potential prejudice to the accused by their intended association with a brothel could be allayed by an appropriate direction to the jury.
62 It is first necessary to address the question whether the letter is relevant to any issue between the Crown and the accused. There is no evidence as to how Ferguson came into possession of the letter. However, it is clear that he gained possession of it between the date of the letter (11 July 2001) and the date of the search warrant (14 November 2002) which is a period during which the Crown alleges that the conspiracy was on foot. It would in my view be open to a jury to infer that Ferguson received the letter from Cox. Thus, the actual possession of the letter by Ferguson would be relevant to show that the relationship between Cox and Ferguson, during that period, was such as it entailed Cox providing Ferguson with a copy of a confidential letter concerning a proposal in relation to a significant commercial transaction into which Cox proposed to enter.
63 The Crown case against Cox and Ferguson is that they were, with Sadler, involved in an illegal conspiracy during that period of time (and before it) to traffick heroin. While the Crown is in a position to establish, through telephone records, that there was some contact between Cox and Ferguson after Cox's retirement from the police force, the possession by Ferguson of the letter goes further than that, and gives some substance to the nature of at least one contact between the two men.
64 It is of course a matter of speculation why Cox provided the letter to Ferguson. I have some reservations whether the jury would be entitled to infer, against either Cox or Ferguson, that the letter was given by Cox to Ferguson in order to induce Ferguson to participate in the potential purchase of the property from funds derived by Ferguson from the alleged heroin trafficking conspiracy. On the other hand, as against Cox, the letter would be relevant to establish, not only the fact that Cox was in communication with Ferguson concerning such a proposal, but that he himself was, in July 2001, contemplating entering into a substantial commercial transaction. One strand of the Crown case against Cox is that, during the relevant period, he had available to him funds from sources beyond those identified by Curtain. The fact that Cox was proposing to enter into the transaction of the nature referred to in the letter of the National Australia Bank would, in my view, be relevant to that issue.
65 Thus, the evidence sought to be adduced by the Crown is potentially relevant. On the other hand, it must be recognised that the evidence does have some potential for occasioning prejudice both to Cox and Ferguson. While the letter itself does not, on its face, reveal that the property, which was the subject of the proposed purchase, was used for a brothel, nonetheless, if it were adduced in evidence, that circumstance might need to be revealed by Cox in order to explain how Cox proposed to fund the interest obligations under the loan. Further, I understand from the submissions of Mr Young that an explanation for the provision of a copy of the letter by Cox to Ferguson might well have been that Cox was then seeking the advice of Ferguson in respect to the proposed purchase. At that time Ferguson was a member of the Vice Squad. Cox was an ex-policeman. If that purpose were revealed in evidence, a jury might draw the inference that Cox was acting improperly in seeking to obtain an unfair advantage by virtue of the fact that Ferguson, a former colleague, was then a member of a squad of the police responsible for regulating the businesses of the type conducted at the premises.
66 I accept that there may be some prejudice, particularly to Cox, arising out of the revelation to the Court that the proposed business to be conducted in the premises were a brothel. On the other hand the significance of that prejudice must be placed into perspective. The business then being conducted at the property was legal. The proposed lender was Australia's largest bank, and not some disreputable lender of doubtful integrity. If evidence were to be given at trial as to the use of the premises as a brothel, I consider that an appropriate direction by me as trial judge, as to the use to which a jury might and might not put the evidence, would significantly allay any prejudice which might otherwise flow to Cox. Of course there can be no guarantee that such a judicial direction would allay such prejudice in the breast of every juror. Nonetheless, the experience of trial judges has been that, by and large, juries are conscientious in complying with the type of direction which might be necessary in this case.
67 I also recognise that there is a potential risk that, if the evidence of the letter were to be admitted, a jury might indulge in untoward speculation concerning the letter. Of course the jury will receive detailed instruction as to the drawing of inferences by it. If the letter is to be admitted in evidence, it might be appropriate, depending upon the state of the evidence, to specifically to remind the jury of the relevant principles relating to inferences when considering the relevance of the letter.
68 Bearing in mind the above matters, it is evident that the letter is relevant to issues to be established by the Crown against both Ferguson and Cox. While as I have stated I recognise that there may be some prejudice in the admission of the letter into evidence, nonetheless I consider that such prejudice may be suitably nullified by appropriate judicial direction. For those reasons I decline to exclude the admission of that evidence in the exercise of my discretion, and I rule that the letter may be admitted into evidence.
(3) APPLICATIONS FOR SEPARATE TRIAL ON COUNT 1
69 Cox and Sadler have both applied for separate trials on Count 1.
70 The central submission made by Mr Young on behalf of Cox is that, in order that he be found guilty on Counts 1 and 2, the jury must be satisfied beyond reasonable doubt as to the truth of the evidence of the witness Duy Le. Duy Le is a witness whose credit will be under wholesale attack. His evidence would be subject to judicial directions both as to his status as an accomplice and also as to his status as an unreliable witness. There is evidence, and in particular evidence of the witness Loan Tran, which potentially corroborates the evidence of Duy Le in respect of Sadler and Ferguson. Moreover, there is independent evidence which supports the evidence of Duy Le that, after the issue of the warrant for his arrest in May 2000, he met with Ferguson, and that during that period he sold a used BMW motor vehicle and cheap alcohol to Ferguson. Thus, in respect of the case against Ferguson, Duy Le's credibility is, at least in part, bolstered by independent evidence. However, there is no evidence corroborating the allegations made by Duy Le against Cox. There is a risk that in assessing and making conclusions concerning the credibility of Duy Le, the jury will take into account the potential corroboration of Duy Le's evidence in relation to Sadler and Ferguson. That assessment will inevitably infect any assessment by the jury of the evidence of Duy Le in relation to Cox. In other words the credibility of Duy Le is not severable according to whether his evidence implicates Ian Ferguson, Sadler or Cox.
71 Further, Mr Young submitted that the allegations relating to Cox are significantly different to those relating to Ferguson and Sadler. Cox resigned from the police force in February 2000. The Crown case is that the initial contact was between Cox and Sadler on the one hand, and Duy Le on the other. However, Duy Le's evidence is that the "vast majority of contact" which he had with the Drug Squad was with Ian Ferguson. The particulars of overt acts in respect of Cox reveal little by way of contact between Cox and Duy Le after Cox's resignation from the police force. Accordingly Mr Young submitted that the case against Cox is significantly different to the case made by the Crown against Ferguson and Sadler.
72 Mr Georgiou, who appears with Ms Spowart on behalf of the secondnamed accused, Sadler, submitted that his client also should be granted a separate trial. Although originally the written submissions filed on behalf of Sadler sought a separate trial from Cox and Ferguson on Count 1, in oral argument Mr Georgiou conceded that, on reflection, he did not have a proper basis to seek a separate trial for his client from Cox. Thus, he only sought a separate trial from Ferguson on Count 1.
73 It was submitted on behalf of Sadler that the case against Ferguson is significantly different to the case against Sadler. First, the extent of the financial betterment alleged against Ian and Joanne Ferguson ($704,000) is significantly greater than that alleged against Sadler (almost $170,000). Ferguson is alleged to have met Duy Le to conduct drug and other corrupt activities significantly more often than Sadler. There were numerous occasions when Ferguson was present and Sadler was not. The number of telephone calls (321) alleged to have been made by Ferguson to Duy Le after the issue of warrants for the latter's arrest was significantly greater than the number (48) alleged to have been made by Sadler to Duy Le during that period. Further, there was other questionable or corrupt activity involving Ferguson which did not involve Sadler, including sales of alcohol by Duy Le to Ferguson, and the sale of a BMW car by Duy Le to Ferguson.
74 In addition it was submitted that there is evidence, apart from that of Duy Le, which is admissible against Ferguson but not admissible against Sadler. That evidence has the potential either to corroborate or, at least, to reinforce the evidence of Duy Le in relation to the allegation that he had a corrupt relationship with Ferguson after warrants had been issued for his arrest. It was submitted that there is no independent and reliable evidence to corroborate Duy Le's allegations against Sadler. Duy Le's evidence is critical to the Crown case against Sadler. Accordingly it was submitted that the assessment of the credibility of Duy Le against Ferguson will necessarily need to be different to the assessment of the credibility of Duy Le as against Sadler. Realistically it would not be possible for a jury to reconsider Duy Le's credibility when assessing his evidence against Sadler.
75 In response Mr Leckie commenced his submissions by referring to the principle that, ordinarily, persons charged with committing a crime should be tried jointly; R v Demirok[22]. Mr Leckie submitted that there were not significant differences in the Crown case against Cox, Sadler and Ferguson respectively. In accordance with the principles outlined by the High Court in R v Ahearn[23], the Crown would be entitled to lead evidence as to the nature and scope of the conspiracy which was essentially the same against each of the three accused. Thus the Crown would be entitled to call all the evidence of Duy Le and of Loan Tran against each of the three accused. In addition the Crown would be entitled to lead evidence as to the telephone records of each of the three accused for that purpose. Mr Leckie recognised that, on the Crown case, each accused was said to play different roles, with some participating more than others in the actual trafficking of heroin to Duy Le. Nonetheless that circumstance did not render the case against each of the three accused significantly different.
76 Mr Leckie further contended that the matters of prejudice, relied upon by Cox and Sadler, were not particularly substantial. The primary matters relied upon by each of those accused were the evidence of the sale of the BMW motor vehicle by Duy Le to Ferguson, and the sale of cheap alcohol by Duy Le to Ferguson. Mr Leckie accepted that Duy Le's credibility in respect of those two transactions was supported by independent evidence. To the extent that that evidence, against Ferguson, enhanced the credibility of Duy Le, any disadvantage to the other two accused, Cox and Sadler, could be adequately dealt with by appropriate judicial direction.
Legal Principles
77 Where two or more accused are jointly presented on one count, the question whether a separate trial should be ordered is a matter for the discretion of the trial judge. The prima facie approach of the Court is that, where the Crown case is that the accused were each engaged on the same common enterprise, they should be jointly presented and jointly tried; R v Grondkowski,[24] R v Demirok,[25] R v Torney,[26] R v Collie, Kranz and Lovegrove,[27] Webb and Hay v R.[28] The acid test is whether it is in the interests of justice that the accused be tried together or separately; see R v Grondkowski;[29] R v Demirok.[30] On the one hand, there are strong public policy reasons why ordinarily those charged with being engaged in a common enterprise ought to be jointly tried. Those reasons were set out in detail in the judgment of the Full Court in R v Demirok[31] and in the judgment of Smith J in the Court of Criminal Appeal in Jones and Waghorn v R.[32] They include the saving of court time and public expense; the avoidance of inconsistent verdicts; the convenience of witnesses; and the desirability of reaching finality as expeditiously as possible and thus of avoiding a repeated retrial of the same issues. Those considerations must, of course, be balanced against the overriding requirement that each accused have a fair trial, according to law, of the charges brought against him or her.
78 Where, as here, the application for a separate trial is made at or before the commencement of the trial itself, the trial judge must act on limited materials. In Demirok[33] the Full Court pointed out: