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[2006] VSC 44
Supreme Court of Victoria
2006-02-20
KAYE J
Original judgment source is linked above.
CRIMINAL LAW - Conspiracy to traffick heroin - Admissibility of evidence - Whether one or more conspiracies alleged.
1 The accused, Stephen Cox and Glenn Sadler, are jointly charged with conspiring, together with Ian Ferguson and others, between 1 April 1999 and 6 December 2002, to traffick heroin in a quantity which was not less than the commercial quantity applicable to that drug of dependence. A jury is due to be empanelled in this matter on 6 March 2006. A number of preliminary matters have been raised for my determination. The first matter concerns the admissibility of the evidence of Kenneth Lai.
2 Originally, Cox and Sadler were jointly presented with Ferguson on a charge of conspiring to traffick heroin in an amount not less than a commercial quantity between 1 April 1999 and 6 December 2002. Each accused was also charged, separately, with counts alleging money laundering contrary to s.122 of the Confiscation Act 1997. On 21 July 2004 I ruled[1] that the charge of conspiracy be tried jointly against Cox and Sadler, but separately to the charge of conspiracy against Ian Ferguson. The trial of Ferguson proceeded on that count, and on the count of money laundering, together with the trial of Joanne Ferguson on one count of money laundering. On 4 January 2006 the jury empanelled in that trial announced its verdict that Ferguson was guilty of both charges. On 5 January 2006 the same jury announced its verdict finding Joanne Ferguson not guilty of the count of money laundering.
3 The question of the admissibility of Lai's evidence had been agitated by Cox, Sadler and Ferguson before I ordered that the trials of Cox and Sadler proceed separately to the trial of Ferguson. By the same ruling dated 21 July 2005 I rejected the submission by each accused that Lai's evidence be excluded. For the reasons set out in paragraphs 30 to 45 of that ruling, I concluded that the evidence of Duy Le and Kenneth Lai,as contained in the depositions, was capable of supporting the existence of the one conspiracy charged in Count 1 of the then presentment. I therefore held that the evidence of Kenneth Lai was relevant and admissible to the charge of conspiracy brought against each accused.
4 Counsel for Cox and Sadler have now submitted that, based on the manner in which the Crown put the evidence of Lai to the jury on the trial of Ferguson, I should re-visit my earlier ruling, and hold that the evidence of Lai is not admissible in the forthcoming trial of Cox and Sadler.
5 In essence, it was argued for each accused that, before my previous ruling, the Crown had contended that there was a clear nexus between the alleged approach by Cox and Sadler to Lai, and the subsequent dealings by Ferguson, Cox and Sadler with Duy Le, so that the approach to Lai had been made pursuant to the same conspiracy which encompassed the dealings by the accused with Duy Le.
6 It is now contended before me that, on the trial of Ferguson, the Crown's position as to the relevance of the evidence of Kenneth Lai underwent a significant shift. As I understand it, it was submitted that the Crown did not put Lai's evidence to the jury in the case of Ferguson as relevant on the basis on which I had ruled it to be admissible, namely, that the approach to Lai was carried out pursuant to the same conspiracy under which it is alleged the accused dealt with Duy Le. In this connection my attention was drawn to a number of passages from the transcript of the trial in R v Ferguson. They include passages from the opening by the learned Crown prosecutor, Mr M. Tovey QC;[2] passages from his final address;[3] exchanges between Mr Tovey and myself, in the absence of the jury, in the course of my charge to the jury;[4] and parts of my charge to the jury.[5]
7 I have carefully read and considered the passages which have been drawn to my attention. I do not accept that those passages reflect a relevant departure by the Crown from the basis on which the evidence of Kenneth Lai was ruled by me to be admissible. In other words, the Crown did not depart from putting to the jury that the alleged corrupt approach by Cox and Sadler to Lai was effected pursuant to the same conspiracy which covered the dealings between Cox, Sadler and Ferguson on the one hand and Duy Le. In essence the Crown case was that the initial approach to Kenneth Lai was the forerunner to the ultimate successful approach by Cox and Sadler to recruit Duy Le as the vehicle through whom they were to traffick drugs.
8 It is correct that, on a number of occasions, Mr Tovey expressed varying degrees of confidence in referring to the evidence of Kenneth Lai, both in his opening and final address. However he did not, in my view, put the evidence before the jury on any other basis than that on which I had ruled it to be admissible. I also consider that the basis upon which I summarised the effect of Lai's evidence to the jury was consistent with the basis upon which I had ruled it to be admissible.
9 In this context it must be appreciated that the focus of the trial in Ferguson was somewhat different to the focus of the upcoming trial. In the case of Ferguson the Crown case was, essentially, that the conspiracy was already on foot when Ferguson became a party to it. There was no evidence that Ferguson had anything to do with the initial attempted corrupt approach to Lai. It is therefore understandable that, in that trial, the prosecutor closed to the jury on the basis that Lai's evidence was not of particular significance. The focus and force of a substantial majority of the evidence in that trial related to transactions occurring with Duy Le, subsequent to the alleged attempted corrupt approach by Cox and Sadler to Lai.
10 In the present case the evidence concerning Lai will of course be of greater significance, for the obvious reason that the Crown alleges that Cox and Sadler were parties to the conspiracy at the time at which that approach was made to Lai. In that context, Mr Tovey, in the present application, stated:
" ... In this trial the Crown position is that the conspiracy started with the approaches to Kenneth Lai and nothing that has been said in the course of the Ferguson trial should lead anybody to conclude any different. That evidence will receive far greater emphasis in this trial than it did in the Ferguson trial, that is because this is a different trial which goes off on its own facts."[6]
11 That basis, as articulated by Mr Tovey, is consistent with the basis on which I ruled the evidence of Kenneth Lai to be admissible. Provided that the Crown advances and explains that basis to the jury in its opening address and adheres to it in the course of the trial, then, in my view, nothing has been submitted to me which would justify a departure by me from my previous ruling in relation to the admissibility of the evidence of Kenneth Lai.
12 My previous ruling was made on the basis of the evidence of Lai and Duy Le as set out in the depositions. Neither Mr Young, who appears for Cox, nor Mr Georgiou, who appears with Ms H. Spowart for Sadler, sought to contend to me that there was any material divergence by either witness from the evidence contained in their depositions, which might affect the conclusion which I reached in my previous ruling concerning the admissibility of the evidence of Kenneth Lai. In those circumstances, I do not accept the submissions made on behalf of Cox and Sadler that there has been any material shift in the Crown case relating to the evidence of Lai which would warrant a departure by me from my previous ruling concerning the admissibility of that evidence. I therefore reject the submission made on behalf of Cox and Sadler that the evidence of Kenneth Lai be excluded from the evidence in the forthcoming trial.
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R
Cox & Sadler