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[2006] VSC 303
Supreme Court of Victoria
2006-08-11
KAYE J
Original judgment source is linked above.
This matter is capable of being one circumstance which, in combination with others, is capable of corroborating the evidence of Duy Le. It was submitted on behalf of Sadler that there was no evidence that Sadler had been to Bambra or Lara after the improvements had been made to Lara, so that Sadler would have known of Ferguson's conspicuous increase in wealth. In my view it is a matter for the jury to infer whether the closeness of the relationship between Ferguson and Sadler was such that Sadler would have known of such matters. Certainly the intercepted telephone conversation between Sadler and Cox on 13 November indicates a degree of familiarity by Sadler with Ferguson's affairs.
It is accepted by Ms Spowart that the items referred to by the Crown are capable of corroborating the evidence of Duy Le against Sadler.
Neither Mr Young nor Ms Spowart contended that any of the items pointed to in this part of the Crown's written outline were incapable of corroborating Duy Le's evidence as to the participation of Ferguson in the alleged conspiracy. In my view each of the items are capable of corroborating that aspect of Duy Le's evidence.
It was submitted on behalf of Mr Sadler that the casino records, which show him recording a loss in the year 2000, and losses in late 2000, are not capable of corroborating the evidence of Duy Le. It was submitted that the casino records are limited in their probative worth. They are not accounting documents. They only record transactions undertaken by a patron using his or her card. Further, they do not say anything about any other gambling in which Mr Sadler may have indulged. Nonetheless, I do not consider that the documents are entirely lacking in any probative value relevant to the issue of Sadler's financial betterment. They are part of the material which I consider the jury are entitled to take into account in its determination whether the evidence of Mr Curtin, in relation to Sadler's financial betterment, corroborates the evidence of Duy Le. It is for the jury to assess the probative effect of the evidence constituted by the gambling records. Put simply, the Crown argument is that it would be an extraordinary coincidence if Sadler only won, when gambling with cash, whereas he lost, when gambling using his card. In my view it is open to the jury to take the gambling records of Sadler into account in that way.
In my view the evidence of Mr Curtin relating to Ferguson's unexplained cash payments and cash deposits is capable of corroborating the evidence of Duy Le as to the participation of Ferguson in the conspiracy. I also consider that the comparison in the peaks of cash payments and cash deposits between Sadler and Ferguson is a relevant and corroborative fact in relation to Sadler. In the same way I consider that the items referred to as "Sadler cash pattern" (Items 10 to 11) are also relevant for that purpose.
Contact with Duy Le - 26 August 1999 to 24 May 2000
I accept Mr Young's submissions that this item is not put forward as material capable of corroborating Duy Le, but rather is put forward as a response to Mr Young's final address. The contacts themselves, before the issue of the warrant, do not per se add probability to Duy Le's evidence that there was a corrupt relationship between himself and Cox, Sadler and Ferguson during that time period.
It is clear that the large number of phone calls and SMS messages between Ferguson and Sadler after the issue of the warrant until 30 November 2002 (565 phone calls and 19 SMS messages) are relevant and corroborative of Duy Le's evidence as to the participation of Ferguson in the conspiracy.
Counsel have not yet addressed me on the issue as to whether there is evidence capable of corroborating the testimony of Loan Tran. I shall defer ruling on that issue, although no doubt the conclusions which I have reached in this ruling will significantly dictate the conclusions I reach in relation to Loan Tran.
[1] R v Cox and Sadler (Trial ruling No. 8) [2006] VSC 233R.
[2] R v Ferguson [2005] VSC 471R.
[3] See R v Rayner [1998] 4 VR 818 at 850-51 (Brooking JA); R v Martin [2003] VSCA 80 at [36-37] (Vincent JA); R v Matthews and Ford [1972] VicRp 1; [1972] VR 3 at 19-20; R v Fuhrer [1961] VicRp 81; [1961] VR 500 at 504-5 (O'Bryan J).
[4] Above.
[5] [1990] HCA 51; (1990) 171 CLR 207 at 211 (emphasis added).
[6] See also R v Ngo [2002] VSCA 188 at [33] (per Winneke P).
[7] Above at 850-851.
[8] At 852.
[9] (1986) 23 A Crim R 211 at 215.
[10] [1972] VicRp 1; [1972] VR 3.
[11] At 19.
[12] (1989) 39 A Crim R 415 especially at 427-9, 434.
[13] Above at 216.
[14] [2000] FCA 461; (2000) 98 FCR 204 at 255-6 (paras 214-15).
[15] (1979) 22 SASR 46 at 52 (King CJ).
[16] [1961] VicRp 81; [1961] VR 500 at 509 (Sholl J).
[17] [2003] VSC 317 at [7 to 10] (Redlich J).
[18] (1994) 72 A Crim R 462 at 479-80 (Hunt J).
[19] Above at [29]; see also R v Nanette [1982] VicRp 8; [1982] VR 81 at 84 (McInerney J); Conway v R [2000] FCA 461; (2000) 98 FCR 204 at 255-6.
[20] Above at 526-7.
[21] Above at [13].
[22] See also R v Kalajzich (above) at 433.
[23] Above at [13].
[24] At 433.
[25] R v Gill (above) at [13]; R v Taylor (above) at [16], per Winneke P.
[26] Above at 665.
[27] Dears 555 by Parke B.
[28] At p.215.
[29] [1999] VSCA 127; [1999] 2 VR 553 at [30].
[30] See also for example R v Matthews and Ford [1972] VicRp 1; [1972] VR 3 at 19.
[32] [1961] HCA 22; (1961) 104 CLR 1.
[33] [1988] HCA 39; (1988) 165 CLR 87.
[34] T98-99 (15/3/99).
[35] Tripodi v R [1961] HCA 22; (1961) 104 CLR 1 at 7.
[36] [1988] HCA 39; (1988) 165 CLR 87.
[37] R v Ahern at 94.
[38] T679.
[39] T357; 644.
[40] T1853.
R
Cox & Sadler