R v Ferguson; R v Sadler; R v Cox [2009] VSCA 198

[2009] VSCA 198

R v Cox and Sadler [2006] VSC 443 (Kaye J)

R v Ferguson [2006] VSC 163 (Kaye J)

DPP v Ferguson [2006] VSC 484 (Kaye J)

CRIMINAL LAW - Appeal - Conviction - Conspiracy to traffick heroin in not less than a commercial quantity - Whether evidence could be relied on to show consciousness of guilt - Adequacy of directions on conspiracy - Adequacy of directions on intention to traffick - Whether Browne v Dunn direction necessary - Whether separate trials necessary - Lengthy jury deliberation - Whether judge should have discharged jury - Whether verdicts unsafe and unsatisfactory - Whether material non-disclosure by Crown - Applications refused.

EVIDENCE - Expert - Opinion evidence - Financial betterment - Analysis of unexplained cash transactions and growth in assets - Whether admissible as expert evidence - Whether prejudicial effect outweighed probative value - R v Strawhorn [2008] VSCA 101 distinguished.

EVIDENCE - Corroboration - Whether evidence must tend to prove guilt of accused in order to be corroborative - Whether judge erred in directions as to which evidence could be treated as corroborative.

CRIMINAL LAW - Appeal - Sentence - Whether judge impermissibly brought to bear own assessment of harmfulness of heroin - Application refused.

CONFISCATION - Appeal - Pecuniary penalty order - Whether judge erred in calculating value of benefits derived in relation to offending - Confiscation Act 1997 (Vic) s 67(1)(c) - Appeal dismissed.

1 On 4 January 2006, a Supreme Court jury found Ian Ferguson guilty of one count of conspiracy to traffick in a drug of dependence in a commercial quantity, and one count of money laundering. The same jury found his wife, Joanne Ferguson, not guilty of one count of money laundering.

2 On 28 April 2006, Ferguson was sentenced to 12 years' imprisonment on count 1 and five years' imprisonment on count 2. It was ordered that the sentence on count 2 be wholly concurrent with the sentence on count 1. A non-parole period of eight years was fixed. Ferguson seeks leave to appeal against conviction, sentence and a pecuniary penalty order ('PPO') made against him under the Confiscation Act 1997 (Vic) ('Confiscation Act').

3 On the conspiracy count, the presentment alleged that

between 1 April 1999 and 6 December 2002 [Ian Ferguson] agreed together with Stephen Cox and Glenn Sadler and others to pursue a course of conduct which would involve the commission of an offence by them namely trafficking in a drug of dependence namely heroin in a quantity that was not less than the commercial quantity applicable to that drug of dependence.

Stephen Alan Cox and Glenn Sadler were separately charged as participants in that conspiracy. They were tried jointly, but separately from Ferguson. Each was also convicted of the conspiracy count. On 24 November 2006, Cox was sentenced to seven years' imprisonment, with a four year non-parole period; and Sadler was sentenced to 10 years' imprisonment, with a six year non-parole period. They seek leave to appeal against conviction only.

4 In his application for leave to appeal against conviction, Ferguson relied on 12 proposed grounds of appeal;[1] Cox on 22 grounds of appeal;[2] and Sadler on 20 grounds.[3] As many of the grounds are common to all three applicants, all of the applications were heard together. Ferguson relied on three proposed grounds of appeal in relation to his application for leave to appeal against his sentence,[4] and two grounds in relation to the PPO.

(What follows is a summary of the Crown case as presented at the respective trials.)

5 In January 1997, Ferguson commenced duties as a senior constable in the Drug Squad of Victoria Police. At that time, the Drug Squad comprised three units. Ferguson worked in Unit 1. Cox and Sadler worked in Unit 3.

6 In March 1999, Cox and Sadler transferred from Unit 3 to Unit 1. Cox became the Sergeant-in-Charge. Ferguson remained at the Drug Squad until 5 November 2000, when he was seconded to the National Crime Authority. He returned to Victoria Police in February 2001, and joined the Organised Crime Squad.

7 The Crown case was that the three men conspired to use their positions in the Drug Squad to recruit traffickers as informers, before offering the informers heroin to on-sell to others for their mutual benefit. The Crown alleged that the men conducted their criminal activities under the guise of a legitimate investigation.

8 Kenneth Lai was one of the Crown witnesses. He gave evidence that Cox and Sadler had invited him to sell drugs on their behalf. According to Lai, Cox and Sadler told him that they were able to supply him at a lower price if he was willing to traffick on their behalf. They proposed that, in return, he would give them about 30 to 40 per cent of the profit that he made. They also told him that, if he helped them arrest more drug dealers, they would give him a portion of the drugs seized in any such bust. Lai assisted them in arresting Duy Le,[5] who was the key prosecution witness.

9 Le's history was as follows. In October 1998, Le was charged with aggravated burglary. In January 1999, he was arrested for trafficking heroin. He pleaded guilty and was sentenced to a wholly suspended sentence. He was subsequently set up by Lai, and in April 1999, while still on bail for the aggravated burglary charge and subject to the suspended sentence, he was arrested by the Drug Squad for trafficking heroin. Cox and Sadler were involved in his arrest. Sadler and Ferguson interviewed him in relation to the drug matters. Prior to applying for bail for the trafficking offences, Le was visited in custody by Sadler and his superior, Detective Robert Hill. An arrangement was reached between them whereby Le would give the Drug Squad information about drug dealers. The police did not oppose his bail application. Le was registered as a police informer.

10 On 2 August 1999, Le assisted the conspirators in a drug operation which took place in the vicinity of Kmart in Burwood.[6] He had arranged to buy seven ounces of heroin from two others, Eddie Cheung and Enrique Agbayani. The bust was successful and Cheung and Agbayani were arrested and charged. The following day, Cox provided Le with one ounce of heroin.

11 Subsequently, Le would purchase heroin for cash from one or more of Cox, Sadler and Ferguson. These transactions usually took place in the vicinity of the St Kilda Road Police Complex. On some occasions, Le's girlfriend, Loan Tran, was with him and observed the transactions. Tran also gave evidence on behalf of the Crown.

12 On 25 May 2000, Le failed to appear in the County Court on his trial in relation to the April 1999 trafficking charges laid by the Drug Squad. In early June, he also failed to appear on the aggravated burglary charge from October 1998. Warrants were issued for his arrest.

13 Sadler subsequently told Le that they would refer to him as 'Fred' in future. Le also changed his name by deed poll to 'Van Thi Nguyen', on Ferguson's suggestion that he choose a common Vietnamese name. He continued his association with Cox, Sadler and Ferguson. In addition to heroin transactions, he was also obtaining information from Sadler and Ferguson about police efforts to arrest him.

14 In November 2000, Le purchased a BMW from Juan Frangoudes. He then sold it to Ferguson, who paid in cash and drugs.

15 In April 2002, Le's name was broadcast on Crime Stoppers. Tran informed him of this. Le rang Sadler for advice.

16 In November 2002, the Ethical Standards Division of Victoria Police questioned Tran in relation to the BMW which Le had sold to Ferguson. She rang Le, who then tried to contact Sadler and Ferguson for advice. (Le did not have a number for Cox.) Le could not get in touch with either of them, and so he sent Sadler an SMS saying 'Right said Fred'. Sadler eventually contacted Le and told him to stay in Sydney. The following Monday, Cox - who had by then left the police force - phoned Le and asked what was going on.

17 Le was arrested in New South Wales on 6 December 2002. He was questioned by the CEJA Task Force.[7] He was induced to cooperate with the Task Force and, after extensive debriefings,[8] made statements implicating Cox, Sadler and Ferguson.

APPLICATIONS FOR LEAVE TO APPEAL AGAINST CONVICTIONS

I BETTERMENT EVIDENCE FROM FORENSIC ACCOUNTANT

18 In proof of Ferguson, Cox and Sadler having benefited from trafficking through Le, the Crown presented an analysis of their financial records and bank accounts. A forensic accountant, Gerard Curtin, gave expert opinion evidence that the assets of both the Fergusons and the Sadlers had, during the relevant period, increased by an amount significantly in excess of that which could be attributed to their known sources of income. (The assets of the Coxes had also increased substantially, but it was accepted by the Crown that the increase was explained by the large payment which Cox received on his retirement from Victoria Police in early 2000.) Curtin also gave opinion evidence as to amounts of cash deposits and payments which could not be explained by any identified source of income.

19 Curtin's opinion evidence was an important part of the Crown's circumstantial case against each applicant. The trial judge admitted the evidence over defence objections. Each of the applicants now contends that the evidence should not have been admitted, first, because it was not admissible as opinion evidence; and secondly, because it should, in any case, have been excluded in the exercise of the Christie[9] discretion, on the ground that its prejudicial effect outweighed its probative value.

20 For reasons which follow, we reject both contentions. It is necessary first to describe the nature of the evidence and the pre-trial challenges to it, which were the subject of two detailed rulings by the trial judge.

(The following description of Curtin's evidence is adapted from the judge's second ruling and from Curtin's reports.[10] The expert reports had, by that stage, been revised in the light of his Honour's first ruling.[11])

21 Curtin's opinion was prepared from financial records obtained upon the execution by police of search warrants and on subpoena. Records were obtained from each of the family units, and from financial and other institutions.

22 In each case, the applicant and his wife held their finances and assets jointly. Accordingly, Curtin treated each married couple as a single financial unit. His opinion evidence was contained in three reports - one relating to his examination of the financial position of Ferguson and his wife, Joanne; a second relating to Cox and his wife, Alexia; and a third relating to Sadler and his wife, Caroline.

23 Each report sets out the results of Curtin's examination of cash deposits, cash payments and cash withdrawals, as reflected in the accounting documents for the family unit. This analysis was conducted for the specific purpose of determining whether cash deposits or cash payments exceeded available cash withdrawals. It involved offsetting cash payments and deposits against cash withdrawals. Curtin also analysed the household expenses of each family unit.

24 In each case, Curtin concluded that, for the period 1 January 1999 to 30 June 2002, there were cash deposits and cash payments which could not be accounted for, either from a source of income or from an antecedent cash withdrawal from an account of the family unit. They were as follows:[12]

25 Curtin also prepared an estimate of financial position for the financial years ending 30 June 1999, 30 June 2000, 30 June 2001 and 30 June 2002 for each of the applicants. In relation to the Fergusons, Curtin identified an unexplained increase of approximately $697,000 in net assets; in relation to the Sadlers, it was approximately $190,000. The evidence in relation to asset betterment was not challenged. In relation to Ferguson and Sadler, the Crown invited the respective juries to infer 'that there was such an increase in the assets ... and/or that there was such an amount of cash transactions conducted by them during that period ... that they were derived from the conspiracy alleged by the Crown'. In relation to Cox, the same inference was urged but in relation to the cash transactions only.

26 It is convenient at this point to dispose of a ground of appeal advanced by each of Cox and Sadler - that the financial betterment evidence in relation to the two other alleged conspirators was not admissible at his trial.[13] If the betterment evidence was otherwise admissible, the whole of that evidence was admissible against each accused to prove the existence of the alleged conspiracy.[14]

27 In his reports, Curtin set out his methodology, including the assumptions made and criteria adopted. He also gave evidence before the judge as to the basis upon which he formulated the assumptions and criteria.

28 His first task was to identify monies coming into and going out of the consolidated accounts of the relevant family unit on a monthly basis. In doing so he adopted a cash flow basis of accounting, which he described as 'a fundamental accounting technique'. He adopted a process of identifying, recording, classifying and summarising each transaction. This information was presented in Annexure 1 to each report. No objection was taken by the applicants to this part of Curtin's opinion.[15]

29 As stated above, the purpose of this part of Curtin's report was ultimately to identify payments and deposits without an identified source. This first required him to eliminate those cash payments and deposits for which he could identify a source. The next step involved offsetting cash payments and cash deposits against cash withdrawals.

30 In his description of the methodology, Curtin states:

Following the consolidation of all accounts an examination of all transactions recorded was conducted on a line by line basis to identify transactions between accounts that were specifically related. Eg a mortgage payment by direct transfer from a savings account to a mortgage account. These transactions can be eliminated as they provide no additional cash flow ...

Due to the nature of cash transactions and the limitations previously expressed all cash deposits and cash payments are unsourced.[16] All cash withdrawals are untraced. This could result in an overstatement of inflows and outflows as an unsourced cash deposit into an account or an unsourced cash payment could be directly related to a prior untraced cash withdrawal from another account ...

A realistic approach to the cash flows estimates should recognise that an unsourced cash deposit into an account or an unsourced cash payment could be directly related to a prior untraced cash withdrawal from an account.

In order to minimise the limitations I adopted a method that would assist in eliminating transactions that could be "related" where specific information was not available. The method adopted is applied consistently throughout the analysis to ensure a uniform result.

31 Curtin relied on a number of assumptions and criteria which he developed. These assumptions and criteria were specified in his reports, and it is these which were the primary basis of the applicants' attack on his evidence, both before the trial judge and in this Court.

32 Curtin adopted a two-stage process. The first stage consisted of an examination of each cash deposit or cash payment for which no source had been identified (for ease of reference, we will refer to these as 'unsourced' deposits or payments) against each prior untraced cash withdrawal, taking into account the following criteria:

• whether the unsourced cash deposit and/or cash payment was less than or equal to the untraced cash withdrawal;
• the amount of the unsourced cash deposit/payment;
• the proximity of the unsourced cash deposit/payment to the prior untraced cash withdrawal (the period was generally three to four days, however this was flexible);
• the proximity of the unsourced cash deposit/payment with other unsourced cash deposits/payments;
• the consistency of the prior untraced cash withdrawal with other untraced cash withdrawals;
• the source of the untraced cash withdrawals; and
• the denominations of the untraced cash withdrawal and the unsourced cash deposit/payment.

Using those criteria, Curtin was able to relate otherwise unsourced cash deposits and cash payments to otherwise untraced previous cash withdrawals. He offset those amounts and indicated the transactions which were offset in Annexure 1 by the use of colour coding.

33 Having undertaken that first stage, Curtin considered the remaining transactions which consisted of unsourced cash deposits and unsourced cash payments in excess of available prior untraced cash withdrawals. In respect of those transactions, he undertook a further analysis to determine whether there was any further information which might permit the offset, or reduction, of the unsourced cash deposits/payments. In doing so, he developed and used the following criteria:

• the amount of the unsourced cash deposit/payment;
• the consistency and proximity of the unsourced cash deposit/payment with other unsourced cash deposits/payments;
• the amount of the prior untraced cash withdrawal;
• the consistency of the prior untraced cash withdrawal with other cash withdrawals;
• other untraced cash withdrawals within the three to four day period (eg whether the aggregation of the withdrawals would offset the unsourced deposit/payment); and
• other transactions detected/not detected around this time considering the consistency of the transaction along with the overall context of the family unit's transactions (eg household transport).

34 Where Curtin was able to obtain further information, the previous untraced cash withdrawal was allocated to offset or reduce the otherwise unsourced cash deposit or unsourced cash payment. Again the matching of the two transactions was appropriately colour coded in Annexure 1.

35 At the conclusion of that process, all cash deposits and cash payments which were not offset by Curtin were consolidated in chronological order on a monthly basis.

36 The trial judge ruled the first drafts of Curtin's reports inadmissible.[17] This ruling followed extensive cross-examination of Curtin by counsel for Cox and counsel for Sadler over four days, and detailed submissions on their behalf. His Honour permitted a Basha[18] inquiry to be conducted on behalf of Cox and Sadler, as Curtin's reports with respect to those two defendants had not been complete at the time of their committal proceedings.

37 The judge concluded that the draft statements were inadmissible on two grounds. The first was that Curtin had not made explicit the assumptions and criteria on the basis of which he had made judgments, and expressed opinions, about which cash payments and deposits were, and which were not, unsourced. His Honour said:

Unless Mr Curtin does specify and identify each of the criteria and assumptions relied on by him in respect of each cash payment and deposit, it would not be possible for the jury to assess, for itself, whether it should accept or reject the conclusion by Mr Curtin that a particular cash payment or deposit is unsourced, in the sense that it does not derive from a withdrawal by an accused person from one of his bank accounts. In its present form, the evidence of Mr Curtin, as to unsourced cash payments and deposits, simply contains conclusions but contains no information on which a jury could properly assess those conclusions for itself. Thus in its present form the evidence of Mr Curtin would usurp the role of the jury, and is thus inadmissible.[19]

38 The second issue was whether, in any event, Curtin was entitled to give evidence - as an expert - as to the validity of the assumptions and criteria relied on by him in reaching those conclusions. His Honour said:

In order to be entitled to give that evidence, it must be established that the formulation of, and reliance on, such assumptions is a proper matter for expert evidence in the manner which I have discussed above. In other words, is the validity of the assumptions relied on by Mr Curtin a question upon which a jury, without the assistance of Mr Curtin, would be unlikely to prove capable of forming a correct judgment? Allied to this is another question, namely, whether in any event Mr Curtin, by reason of his background, studies and experience, is qualified to give "expert evidence" as to the validity and suitability of the criteria and assumptions upon which he has relied.[20]

39 As his Honour noted, Curtin had been cross-examined about whether his methodology for determining whether cash payments could be 'matched' with prior cash withdrawals was based on any field of specialised knowledge or learning, in respect of which he himself was an expert. His Honour said:

The cross-examination revealed that Mr Curtin's methodology, at least in respect of some cash payments and deposits, was based significantly on an assessment by him as to the likely spending behaviour of each of the accused and their wives. In particular, Mr Curtin's methodology required him to assess whether a particular cash withdrawal made by an accused was likely to have been expended before that accused incurred a particular cash payment. The cross-examination further revealed that that process involved Mr Curtin making assumptions as to a "normal" person's spending habits.[21]

His Honour concluded that the evidence which Curtin proposed to give involved:

a significant component of judgment by him where he is required to determine whether a particular cash payment or deposit is matched by a previous cash withdrawal by the same accused. To a material extent those judgments by Mr Curtin involve assumptions made by him as to the spending behaviour of "normal" people. Mr Curtin has not been able to identify any particular specific training, or field of learning, on which those assumptions were based.[22]

40 In his Honour's view, the assessment of whether - and when - an 'ordinary' person was likely to have spent funds previously withdrawn in cash was 'essentially an assessment which a jury can make without the aid of an expert.'[23] His Honour pointed out that the essential role of a jury was to bring into the court's adjudicative processes the qualities of 'common sense, proportion and reasonableness of the normal person', and that it was:

precisely those qualities which are called upon by Mr Curtin in making assessments in respect of some of the cash payments and deposits. In that respect the views of Mr Curtin are no more valid than the views of anyone else in our society including that of a juror. There is nothing in the evidence before me that suggests that those views are derived from a specialised area of learning or experience of Mr Curtin. Nor has it been shown to me that, where he has been required to make assumptions as to the ordinary spending behaviour of individuals, there is a specialised field of learning upon which an appropriately qualified expert might draw.[24]

For that reason, his Honour concluded, it would be inadmissible for Curtin:

to give evidence based on assumptions and assessments made by him relating to the spending conduct of "normal" individuals. Those assumptions have not been shown to me to be assumptions which are within the province of some specialised field of learning, experience or practice. Nor has it been proven to me that, in any event, Mr Curtin has any sufficient expertise to qualify him to give evidence as to the ordinary spending conduct of "normal" individuals.[25]

41 Following the first ruling, Curtin revised his reports. The revised reports made explicit the assumptions and criteria which he had employed to reach his conclusions.[26] Giving evidence on a voir dire, Curtin gave a much more detailed account of his methodology and, in particular, of the basis upon which he had adopted the relevant assumptions and criteria. As the judge noted in his second ruling, Curtin referred specifically to an accounting standard published by the Institute of Chartered Accountants, entitled 'Statement of Forensic Accounting Standards - APS 11'. Curtin referred to clause 23 of that Standard, which provides as follows:

During the course of providing forensic accounting services, members may be instructed, or may seek, to utilise estimates or make assumptions concerning past or future events, facts or amounts, in circumstances where more data is not available. In such circumstances, members should ensure that the use of such estimates or assumptions is:

(a) reasonable in the circumstances; and

(b) suitably qualified and disclosed.

42 (The further course of Curtin's pre-trial evidence was described in the second ruling, as follows.) Curtin stated that that accounting standard, and in particular the reference to using the concept of 'reasonableness' in the development of assumptions, was no more than a codification of what had been the practice in accounting for a long time. Applying that Standard, and using his experience in preparing cash-flow analyses, he had developed the assumptions and criteria set out earlier. He himself had not, in the past, developed the particular assumptions and criteria he had relied on in this case, but the process of developing appropriate assumptions and criteria - based on the accounting concept of reasonableness - was something he had undertaken on a number of occasions, and was common to accountants in general.

43 Curtin answered the following question in re-examination:

COUNSEL: And the question I was trying to get to was this: that from your experience, training and background are you aware of other accountants using the same process as part of an accounting process?

WITNESS: In relation to the exact criteria, I am not sure; a general principle that I am applying is simply approaching an issue of an unknown quantity from the perspective of reasonableness. It happens every day in accounting in terms of trying to determine what is a reasonable approach to a specific issue that arises. It happens with respect to asset valuations. It happens with respect to determining liabilities. Assumptions have to be made and in this particular instance the issue that I was confronted with, and it is an issue that happens in nearly every cash flow that I have done, that the unknown is the cash withdrawals and the cash deposits. In a lot of the instances I have been involved with, cash deposits are known so it is the cash withdrawals and the application of those funds that are the unknown, and my process has always been to allow cash withdrawals to be offset against cash payments where it accounts for that transaction. I know that this process is adopted throughout [by] the accountants at the Major Fraud Group. As to other accountants using this, I'm not sure, but it is a general accepted practice to make assumptions in order to accommodate issues that are arising, as long as those assumptions are realistic and reasonable.

44 Similarly, in cross-examination, in answer to questions about the assumptions which he made, Curtin stated:

COUNSEL: What you have done in this analysis in order to plug the gaps is make a number of assumptions?

WITNESS: Yes.

COUNSEL: And those assumptions are still based on your perception about how a family unit save and spend their cash?

WITNESS: No.

COUNSEL: No?

WITNESS: The assumptions are based on accounting and my experience in preparing cash flows over the years.

COUNSEL: You say there is an objective standard that you apply to what is done with cash withdrawals?

WITNESS: What I have done is attempt to categorise a particular transaction, and that is a cash withdrawal being related to a cash deposit.

COUNSEL: In doing so you apply your opinion as to what a family unit would do with a cash withdrawal; for example, how long they would hold on to it before spending it?

WITNESS: That is based on my experience as to looking at transactions within accounts and the relationship between a withdrawal and a deposit within accounts; so it is not an assumption on what people do, it is based on what my experience is and what I believe is realistic and reasonable.

...

COUNSEL: Apart from accounting standard 11 which speaks of "reasonable in the circumstances", there is no further definition or test to be used in the concept of reasonableness, is there?

WITNESS: I think it is just a general accepted concept of what reasonable is. It is applied throughout accounting, a reasonable approach to the evaluation of assets, a reasonable approach to anything; it is simply an approach that is based on the general meaning of what reasonable is.

45 Again, later in cross-examination he described his use of the concept of 'reasonableness' and the development of the assumptions and criteria on which he relied, as follows:

It is essentially based on the way I prepare cash flow analyses. This is not exclusive to this matter. For every cash flow analysis I have done, there are situations where there have been cash withdrawals, cash deposits and cash payments into various accounts and I use this process regularly. So it is simply based on my experience in the examination of accounts. ... [I]t is not exclusive to this matter. It is something I have done. I have applied in many other instances where I have done cash flow analysis.

46 His Honour ruled that it was admissible for Curtin to give evidence of his opinions as to which of the cash payments and cash deposits were, and which were not, capable of being matched with a previous cash withdrawal. It was important, his Honour considered, that the tables recording all of the transactions within the relevant period were such that

a jury would, without guidance from the [expert], have considerable difficulty reaching any meaningful or appropriate conclusion relating to the cash payments and cash deposits which are identified in the accounts.[27]

47 His Honour also considered it significant that, both numerically and in terms of the monetary amounts involved, only a minority of the transactions had been the subject of a 'judgment call' of the kind described by Curtin. His Honour said:

Certainly in monetary terms, the significant majority of the cash deposits and cash payments set out in Annexure 1 in each case do not have any possible relationship to a corresponding cash withdrawal. Yet if Mr Curtin were precluded from giving evidence identifying those transactions, the jury would be deprived of valuable assistance without which they might not be able to form the appropriate conclusion in relation to the "uncontroversial" transactions.[28]

Conversely, it was necessary as a matter of fairness to the accused that Curtin be able to identify transactions which he considered should be offset, and to explain the basis on which they were offset (and hence 'removed them from the category of potentially unsourced cash deposits or cash payments.'[29]).

48 The most important conclusion, however, in the light of the first ruling, was as follows:

The evidence now before me on the voir dire does, I consider, establish that the development and application of the criteria and assumptions by which to assess whether a cash payment or deposit is to be off-set against a cash withdrawal is the product of the expertise and experience of Mr Curtin as a certified practising accountant. On the first voir dire, Mr Curtin did not satisfy me that the exercise which he had then performed was derived from or related to his expertise as an accountant. However the evidence now before me, and to which I have referred earlier in these reasons, does satisfy me that, in seeking to "match" cash deposits and payments with cash withdrawals, Mr Curtin has brought to bear the expertise which he has gained through his training and qualification as an accountant. In other words in conducting cash flow analyses Mr Curtin, and indeed other accountants, are required to develop and apply criteria, based on the accounting concept of reasonableness. While in each case different criteria and assumptions may be developed, nevertheless the accountant calls upon his or her experience and expertise in developing and applying those criteria, informed as he or she must be by the requirement of reasonableness. Accordingly, I accept that Mr Curtin was acting as an expert accountant, and using his expertise as such, in developing and applying the criteria and assumptions set out in his report.

Counsel for the accused have contended that the criteria and assumptions developed by Mr Curtin are no more than principles relating to the normal spending habits of family units. However, on analysis, it is clear that the exercise conducted by Mr Curtin was based essentially on an accountant's methodology, and not based on any assumptions by him as to spending habits. For example, he was cross-examined as to why he would not off-set a smaller prior cash withdrawal against a larger subsequent cash deposit or cash payment in the same account. His response made it clear that as an accountant he would not off-set the two amounts without being provided with further information. Similarly, Mr Curtin stated that, in applying his criteria, he would not off-set a cash deposit against a cash withdrawal where both transactions occurred from the same bank account. As an accountant he considered he would not be at liberty to off-set the two transactions because they did not evidence a transfer of funds from one account to another. Each of those two responses, in my view, make it clear that, whatever similarity Mr Curtin's exercise bears to an assessment of the ordinary spending habits of a family unit, nonetheless the exercise performed by Mr Curtin was based on an accountant's methodology.

49 In our view, his Honour was correct to conclude that the Curtin evidence was admissible, essentially for the reasons which he gave. As appears from the two rulings, he scrutinised the proposed evidence very carefully - including by his own questioning of the expert - and assessed its admissibility by reference to the following questions:

1. Is the subject matter of the opinion evidence such that the tribunal of fact would not be able to form a correct judgment without the assistance of a suitably qualified expert?[31]
2. Is the assistance which the expert's opinion can provide to the tribunal of fact a product of knowledge and experience which the expert possesses, but the tribunal of fact does not?[32]
3. Is the witness appropriately qualified to give expert evidence in the form of the particular opinion sought to be adduced?[33]

50 His Honour, in the second ruling, answered each question in the affirmative. His analysis was, with respect, unimpeachable. That these were the right questions is clear from the authorities which his Honour cited. The contrary was not suggested on the appeal. The answers to the first and third questions were not seriously challenged on the appeal. Nor could they have been. As Malcolm CJ said in Caratti v The Queen:[34]

It is well established that when a person's books and accounts have been produced in Court, an expert witness, who has examined them, may give evidence of the result of his examination and as to the effect of their contents.[35]

Where a witness has acquired knowledge by lengthy and studious application to material which is itself admissible evidence and where to afford the jury the time and facilities to conduct similar research would be impracticable, it is legitimate to allow the witness to assist the jury by giving evidence of his opinion.[36]

51 Although the jury might ultimately have been able to form their own conclusions as to which transactions were capable of being offset, an accepted role of an expert is to help a jury 'to use the evidence of their own eyes'. [37] As Cussen J said in R v Parker:[38]

[T]hey are not, in one sense, speaking as experts at all, but are merely pointing out to the jury matters which the jury could determine for themselves - they are merely convenient helpers of the court.

52 The trial judge was clearly right when he said that the reports were likely to be of limited use to the jury unless they had assistance in their interpretation:

A perusal of Annexure 1 to each of the three reports persuades me that, to put such a document before a jury without any guidance from the evidence, would be to ask too much of a jury. Each of the documents contains a large number of transactions. Each line of the document contains a significant amount of information. Faced with such a document, a jury would, without guidance from the evidence, have considerable difficulty reaching any meaningful or appropriate conclusion relating to the cash payments and cash deposits which are identified in the accounts. In other words, on the face of the three documents it is self-evident that a jury would be unlikely to be able to form a correct or meaningful judgment on the accounts, as to the cash payments and cash deposits identified in them, without assistance from the witness who compiled the document.[39]

Moreover, by identifying those transactions which could be offset, Curtin simplified the task which the jury had to undertake.

53 As to the second question, we think his Honour was clearly correct to conclude that the opinions which Curtin expressed in his reports were reflective of his expertise as a forensic accountant. This is apparent, in our view, both from the nature of the task which Curtin undertook and from the manner in which he carried it out. As described earlier, the subject matter of Curtin's enquiry was whether, and to what extent, cash payments and deposits made by the relevant family unit could be offset against prior withdrawals of cash from the known resources of the family unit. The method he adopted was that of cash flow analysis, of which he had extensive prior experience.

54 In the majority of instances, the presence - or absence - of an identifiable source for a cash payment was clear. Only in a minority of cases did a judgment have to be made about whether there was an identifiable source for a particular payment. In making those judgments, Curtin brought to bear a variety of criteria and assumptions, clearly identified by him in his reports.[40] As his Honour said, both the identification of the relevant criteria for the task, and their application to particular transactions, were the product of Curtin's expertise and experience.[41]

55 What Curtin was doing was deciding whether an inference of connection - between a withdrawal and a subsequent payment - could properly be drawn. Expert assistance in the drawing of inferences 'is an integral part of the common law trial processes'.[42] One of the criteria on which Curtin relied was the temporal 'proximity' of the relevant payment to the relevant withdrawal. It was this aspect of the analysis which, in the first ruling, was viewed as making the evidence inadmissible, since it was 'based on assumptions and assessments made by [Curtin] relating to the spending conduct of "normal" individuals'.[43] Curtin had acknowledged under cross-examination that he had made assumptions about the likelihood of - for example - a person who withdrew an amount of $200 in cash on Monday still having that cash available for spending the following Friday.

56 We agree with his Honour that this apparent difficulty was removed by the revised reports (which showed that temporal 'proximity' was only one of a number of criteria applied to the task), and by Curtin's further evidence that the making of such assumptions was expressly authorised by the accounting standard referable to forensic accounting and that his assumptions were a product of his expertise and experience.[44] (The same approach applied, he said, to the audit function. 'It is simply whenever an issue arises the accountant must apply an approach that is reasonable, realistic and justifiable.')

57 Curtin had no access to the individuals who had participated in the transactions shown in the financial records. It is characteristic of forensic accounting that the expert accountant is confronted with 'circumstances where more data is not available' and where estimates and assumptions must therefore be made. As the accounting standard - and the law - required, all of his assumptions were disclosed in his reports.

58 Whether the assumptions were 'reasonable in the circumstances' was a matter which the jury could decide for itself. It was of course a condition of the admissibility of the evidence that the jury be able to determine for themselves the appropriateness of the assumptions adopted.[45] The fact that the jury could make judgments for themselves about the subject-matter of one of those assumptions - the likely speed of dissipation of an amount withdrawn in cash - did not render Curtin's opinions inadmissible.[46] Moreover, an expert opinion does not lose its character as such merely because it is based on an assumption of fact concerning a matter which jurors would be capable of deciding for themselves.[47] The position might be different if the subject-matter of the opinion itself were a factual matter of that character. But that is not this case.

59 Having concluded that the evidence was admissible, his Honour addressed the defence submissions that Curtin's evidence should be excluded in the exercise of his discretion. It was argued that:

[T]he probative value of Mr Curtin's evidence is limited and ... is significantly outweighed by the unfair prejudice which would be occasioned to each accused should Mr Curtin be permitted to give that evidence.[48]

His Honour rejected the arguments, and admitted the evidence.

It is clear that the exercise undertaken by Mr Curtin has its limitations, deriving from the limited amount of information available to him. Further, it is evident that the accuracy and validity of Mr Curtin's analysis depends upon the appropriateness and validity of the criteria and assumptions utilised by him. Nonetheless, despite those limitations, the evidence does potentially have significant probative value. As I have already stated, a number of cash deposits and cash payments, characterised by Mr Curtin as "unsourced", are unaffected by the assumptions and criteria which he has adopted. In other words, in respect of those transactions, there is no available cash withdrawal, or other source of income, which could conceivably account for those transactions. Thus in each case the report of Mr Curtin does identify a significant amount of cash transactions which, on their face, do not seem to be affected by the limitations to which Mr Curtin has adverted. Further, the limitations of information available to Mr Curtin potentially can work in both directions. It is true that the limitations on information available to Mr Curtin may mean that he is not in possession of information which might account for otherwise unsourced cash payments or cash deposits. On the other hand the same limitations mean that he may not have identified a significant amount of unsourced cash payments.

On the matters which were revealed on the voir dire, and on the basis of matters put in cross-examination, I do not accept that the probative worth of Mr Curtin's evidence is slight or insignificant by virtue of the limitations and assumptions specified in his report. Ultimately an assessment of the weight of the evidence is a matter for the jury. However I do not conclude that the evidence can only be characterised as having slight probative worth. Further and importantly the evidence is directed to a central issue in the case. The Crown case against the accused is based on an allegation of a significant amount of trafficking in heroin over a three and a half year period. On the Crown case significant amounts of payments in cash were made to one or more of the accused Cox, Sadler and Ian Ferguson. In that context the identification by the accountant of cash payments and cash deposits, which are not accounted for by information available to him, or by cash withdrawals from the accounts of the accused, is particularly relevant.

61 We respectfully agree with his Honour's analysis. The evidence had real and obvious probative value. Its value was enhanced, in our opinion, by the meticulous way in which Curtin had undertaken his task and by the clear and detailed form in which his assumptions, his methodology and his conclusions were set out in the reports.

62 As to prejudice, his Honour dealt with two arguments advanced on behalf of each accused. The first was that the effect of admitting Curtin's evidence would be to reverse the onus of proof, by 'in effect casting an onus on the accused to prove that the cash deposit was funded from the proceeds of the prior cash withdrawal'. His Honour rejected this argument, for the following reasons:

The effect of the accountant's evidence is no more than that, applying his methodology and criteria, two transactions are not off-set or related. Such a proposition by the accountant does not cast any onus of proof on the accused. The adoption of those criterion means no more than that, as an accountant, Mr Curtin did not apply criteria which would permit the off-setting of the two transactions. However, essentially it is a matter for the jury whether they are satisfied beyond reasonable doubt that one transaction is not off-set against another. The jury may or may not accept the methodology of the accountant. Indeed they may accept his methodology but not be satisfied beyond reasonable doubt that two transactions are not related. However in any event the adoption of the methodology and assumptions by the accountant is no more than that; it does not, contrary to the submissions of the accused, reverse any onus of proof in the case. [50]

With respect, this analysis was plainly correct. There was no reversal of onus. This was no different from any other case based on circumstantial evidence.

63 The second argument was described by his Honour as 'the main aspect of prejudice contended for'. There was, it was contended, an unacceptable risk that a jury would seize on the 'bottom line' figure of Curtin in each of his reports. His Honour summarised the argument as follows:

Thus the jury may take the view, particularly in a long case, that the figure derived by Mr Curtin is a figure arrived at by an experienced and expert accountant, and thus invest it with undue weight. It was submitted that this risk is particularly significant in this case because of the similarity of the criteria relied on by Mr Curtin to the type of assumptions a jury might itself make in determining whether particular transactions are related or to be off-set.[51]

There is, of course, always a risk that a jury, in any case, might be beguiled by any expert, and tend to give the views of that witness excessive weight simply because of the status of the witness as an expert. However, as in any case, I consider that such a risk can be appropriately counteracted by judicial direction, both during the trial, and in final directions, as to how the jury is to scrutinise and assess the evidence of the expert for itself.

In this case, the expert has now articulated each of the limitations to his report, and each of the assumptions and criteria adopted by him in determining whether or not particular transactions are "unsourced". The jury will be instructed that they are to take into account all of the limitations specified by the accountant, and any other limitations revealed in evidence. Further, the jury will be instructed that it is for them to critically analyse and assess the criteria and assumptions relied upon by the expert. Further and importantly, if the evidence of Mr Curtin is to be admitted, it will be on the basis that the witness is not expressing views based on assumptions as to the spending habits of ordinary people. The evidence would be admitted on the basis that Mr Curtin, using his expertise and experience, was analysing the transactions as an accounting exercise. In other words, Mr Curtin would not be permitted to express views which might usurp the role of the jury. ...[52]

65 Once again, we are wholly in agreement with his Honour's analysis and conclusion. The risk adverted to cannot sensibly be assessed pre-trial, since it very much depends upon the course of the trial. For example, if the defence by cross-examination - or by evidence - exposes flaws in the opinion, or in any of the assumptions on which it is based, the force of the 'bottom line' will inevitably be blunted. If at the end of the trial the risk remains, it can be addressed by appropriate judicial direction.

66 On the appeal, counsel for each applicant relied heavily on this Court's recent decision in R v Strawhorn ('Strawhorn')[53] to support an argument that the Curtin evidence was inadmissible because his conclusion that certain cash payments or deposits were without a known source, was ultimately based on 'speculation'.

67 In Strawhorn, there were four counts of trafficking in pseudoephedrine, and one (count 5) of trafficking in a commercial quantity of pseudoephedrine. The applicant had been convicted only on count 5. Numerous grounds of appeal were argued on his behalf, of which only one is presently relevant.

68 As appears from the joint judgment, the prosecution had sought, as part of a general body of circumstantial evidence in relation to counts 1 to 5, to establish that the applicant was at relevant times in possession of unexplained cash.[54] Curtin also provided expert opinion in that case, in a largely similar format. His opinion was that, during the relevant period, there were seven unsourced cash payments totalling $13,099. Because of the timing of the payments and the dates of the alleged offences, the judge had directed the jury that the first three of the seven payments were capable only of corroborating the evidence on counts 1 to 4 (of which the applicant was acquitted), while the last four transactions were capable of corroborating the evidence in relation to all five counts. The applicant's counsel submitted that Curtin's evidence should not have been admitted. This Court agreed.

69 The relevant part of this Court's judgment is in these terms:

The jury clearly did not regard this evidence as significant in relation to counts 2 [scil 1] to 4. This was hardly surprising in the circumstances. The highest at which the evidence of Curtin could be put was that he was unable to ascertain the source of what were, after all, relatively small amounts of money and it is apparent that only through speculation could they be linked to the conduct alleged by the prosecution.

With regard to count 5, no adequate foundation existed for the inference that the unaccounted money in his possession after 19 April had not been received by him either much earlier or in a totally unrelated way. There is considerable force in the argument advanced on his behalf that this evidence could be seen to possess no probative value as part of the circumstantial case on count 5 or as corroborative of Paton and, accordingly, should not have been left for consideration by the jury.[55]

70 The Court concluded, however, that there had been no miscarriage of justice. This was because the jury had acquitted the applicant on counts 1 to 4 notwithstanding Curtin's evidence. The jury not having been influenced by the betterment evidence in relation to those counts, the Court said, 'There is no reason to suspect that they may have placed any greater weight on the evidence applicable to count 5. It was clearly of no better quality.'[56]

71 According to the appeal submission advanced on behalf of Cox, what the Court said in Strawhorn was to be viewed as a 'determination' to the effect that 'this form of evidence [is] inadmissible ... in consequence of it being devoid of probative worth.' It was submitted, further, that Strawhorn was indistinguishable from the present

in terms of the construct and content of the evidence there in issue compared with the Cox "betterment" evidence. It is possessed of the same methodological shortcomings that render any ultimately expressed opinion less probative and any resultant drawn inference more untenable in a criminal trial.

72 With respect, this submission mischaracterises what was said in Strawhorn. The brief remarks in the joint judgment simply did not address the admissibility of 'this form of evidence'. That question of principle did not arise. In contradistinction to the present case, there was no occasion for the Court of Appeal in Strawhorn to review the admissibility of the evidence as opinion evidence or, in relation to the exercise of discretion, to weigh the competing arguments as to probative value on the one hand and prejudice on the other.

73 The relevant ground of appeal in Strawhorn made no reference to the admissibility of Curtin's opinion evidence as such. It contended instead that the trial judge had erred in admitting the evidence of the eight financial transactions 'said to involve unexplained cash transactions'.[57] What was said in Strawhorn related to - and only to - whether the inference was open that the 'relatively small amounts of money [were] linked to the conduct alleged by the prosecution'. The view of the Court was that 'no adequate foundation existed for the inference'. Clearly, what was said there was not intended to be, and should not be taken as, a statement of general application.

74 Counsel for Cox advanced a number of submissions attacking Curtin's analysis and conclusions specifically concerning the Cox family unit. These submissions explicitly reiterated points which counsel had sought to make in cross-examination of Curtin on the voir dire and in pre-trial submissions on admissibility.

The Cox financial profile also much more readily [than in Strawhorn] admits [of] reasonable plausible exculpatory hypotheses as to the alternate sources of the identified "un-sourced" funds. This likely reality could never have been negatived by the Crown, beyond a reasonable doubt.

On the voir dire, counsel had put to Curtin that he was 'unable to say what the reservoir of funds available to the Coxes [was] as at May 1999'. Curtin replied:

The amount of funds available to the Coxes as at May 1999 is whatever was in their bank accounts and whatever access they had to their salary and wages. That is all I know. I don't know if there was any cash anywhere else. I only know what we have been able to determine from the records.

Counsel suggested to Curtin that there were various possible sources of unrecorded cash, such as gifts, private loans in cash and gift vouchers, which might have accounted for payments and deposits which Curtin considered were without a known source. Curtin responded that he was unable to speculate on sources of cash other than those shown in the accounts held by the Coxes with various financial institutions. He said to defence counsel at one point: '... I can only go by what is the transactions in the account. If you know more, well, you know more.'

76 Curtin was aware that the Coxes had advertised certain items for sale in the Trading Post, but, except where payment had been by cheque, he had no information to indicate whether the items had been sold. He also acknowledged having made the assumption that amounts identified on debit card statements as supermarket debits were payments for groceries. He agreed that the statements did not disclose, and he was therefore unable to ascertain, whether any part of a particular debited amount represented 'cash out' at the cash register. He agreed that, theoretically, an amount of 'cash out' could have been the source of a subsequent cash outgoing, but said that he had seen no instance where a supermarket debit of this kind had been followed by an (unexplained) cash outgoing.

77 It was put to Curtin in cross-examination, and again argued on the appeal, that once Cox took up private detective work following his retirement from the police force in February 2000, some of the income of the business (which traded as Select Investigations Services Pty Ltd ('Select Investigations')) might have had 'a cash component to it'. Curtin responded that he had assumed that the books of account (and tax returns) of Select Investigations disclosed all amounts of income received by it and, likewise, he had assumed that there had been 'total honesty in relation to the listing of expenditures ... of the business'. With respect, these assumptions were unimpeachable.

78 What the pre-trial cross-examination revealed, in our view, was this. There were, of course, theoretical possibilities of the kind advanced by defence counsel but, in the absence of documentary or other evidence to substantiate them, they remained just that - possibilities. Curtin could not reasonably have been expected to make allowance for mere possibilities, nor could their omission have affected the admissibility of his reports. It was for the defence to determine how to go about substantiating one or more of those possibilities at trial, in order to raise for consideration by the jury alternative - innocent - explanations for the cash outgoings identified as being without a known source.

79 That is, of course, precisely what occurred. For example, the accountant for Select Investigations - called by the prosecution - was cross-examined about the 'scope' for some of the company's work to have been paid for in cash and not disclosed in the accounts or the tax returns. And Alexia Cox, the applicant's wife, was called by the defence to give explanations for outgoings said by Curtin to be without a known source. Mrs Cox said that the $5,000 deposited in March 2000 (see below) had been provided in cash, as a loan, by Cox's father. She confirmed that she did take 'cash out' when using EFTPOS facilities, 'if [she] needed some extra money or if [she] had bills to pay'. She also confirmed that sales through the Trading Post had produced 'some measure of additional cash'. Ultimately, of course, it was for the jury to decide whether the Crown had excluded, beyond reasonable doubt, all other explanations consistent with Cox's innocence.[58] The judge made this perfectly clear in his charge.

80 It was further contended on the appeal that, because both the total 'betterment' amount of approximately $30,000 and its constituent amounts were (relatively) small, the evidence of Curtin had 'far less probative value' in relation to Cox than it had in relation to, for example, the Fergusons, where the total exceeded $700,000. We reject that contention. The probative value of the evidence lay not only in the quantum - which in turn took its significance from the context - but also in the timing of the relevant transactions. The essence of betterment evidence is the identification of unexplained flows of funds and increases in wealth. As we suggested earlier, the probative value of the evidence in the present case was enhanced by the meticulous care with which the unexplained transactions were isolated. As Spigelman CJ said in Australian Securities and Investments Commission v Rich,[59] the probative value of evidence of this kind depends critically on 'the logical force of the process of reasoning based on the disclosed facts'.

81 The annexures to the report listed every recorded transaction of the Coxes over the entire period, and clearly identified those where an outgoing was matched with a withdrawal. The report itself identified precisely, and with supporting reasons, where Curtin had been unable to offset particular outgoings with withdrawals. Far from being 'rubbery', as counsel submitted on the appeal, the figures were rigorously precise.

82 As the table below shows, the unsourced outgoings were identified as either 'cash deposits' or 'cash payments'. Importantly, the disclosed after-tax income of the Coxes was less than $40,000, except in the year ended 30 June 1999 when it was $43,197.[60] In that financial setting, unsourced cash payments exceeding $4,000 (January 2000) and unsourced cash deposits of $2,000 (February 2000) and $5,000 (March 2000) were capable of being viewed as quite significant. (Defence counsel acknowledged as much in the course of pre-trial argument, when he conceded that there were 'about three' outgoings which 'just stick out'.) Likewise the fact that there was an unsourced cash payment and/or an unsourced cash deposit in 13 of the 19 months from December 1999 to June 2001.

83 The appeal submissions for Cox focused particular attention on what was said to be an unsourced cash payment of $10,000 in the month of October 2000. According to Curtin's report, this amount related

to the payment of $10,000 for a Night Vision Camera by S Cox. The camera was provided to Select Investigations. Records of Select Investigations indicate[d] that payment was made for this item in cash by S Cox.

84 It was submitted that this was 'a single, temporally very remote item [whose] very factual existence is highly conjectural and speculative'. In fact, the relevant evidence about this item was quite clear. As the Curtin report noted, the accounts of Select Investigations specifically recorded this item in the depreciation schedule, with the notation 'paid cash per client'. At the trial, the prosecution called evidence from the then-accountant for the company, Ross Cooper, who said that he had been unable to match the stated value of $10,000 with either a cheque payment or a debit in the company's bank account. He had then asked Cox about the item. Cox told Cooper that he had paid cash.

85 Under cross-examination, Cooper readily conceded that he had never seen the equipment and did not know if it in fact existed. Mrs Cox's evidence was to similar effect, in that she denied knowing anything about the equipment or about any such expenditure. The defence evidently wished to suggest to the jury the possibility that no such equipment had ever been purchased and hence, that Cox had never made a $10,000 cash payment. Cox did not give evidence. In the face of Cooper's sworn evidence, therefore, this necessarily remained (at best) a possibility. Moreover, as the prosecutor pointed out in his final address, the defence scenario assumed deliberate tax fraud on the part of Cox, involving blatant deception of the company's accountant. Once again, it was for the jury to consider the plausibility of this scenario, in carrying out the task which the judge had defined for them.

86 Each of the applicants advanced a ground of appeal to the following effect:

The trial of the applicant miscarried in that the prosecution relied on an amount of $370,000 as part of the quantum of the unaccounted/unsourced "betterment" figure attributed to Ian Ferguson, when that amount had previously been alleged by the Crown to be referable to a separate count of theft, which had been the subject of an order for severance.[61]

87 The essential complaint is that the Crown was simultaneously advancing two inconsistent propositions with respect to the amount of $370,000. The first proposition was that this sum was part of a total of some $700,000 of unsourced cash which, the jury were being urged to infer, represented the proceeds of the drug trafficking conspiracy. The second, and inconsistent, proposition was that this amount had been stolen by Ferguson from one Giac Nguyen on 30 August 2000. Ferguson had been committed to stand trial, and presented for trial, on a count of theft with respect to this amount. He had successfully applied to have this count severed and heard separately from the conspiracy and money-laundering accounts. The application for severance had been resisted by the Crown on the basis that funds derived from the theft may well have been used by Ferguson to purchase heroin pursuant to the conspiracy. In ordering severance, the trial judge ruled that an equally cogent possibility was that the proceeds of the theft were used for purposes of enriching Ferguson - and hence had no connection to purchases of heroin.[62]

the approach of the Crown in this area created a fundamental unfairness in the applicant's trial and highlighted the highly speculative nature of this part of the "Curtin" betterment evidence.

The argument for Cox, which counsel for Sadler adopted, was that

while the inconsistency in the Crown position obtained, the judge ought not to have allowed the Crown to rely on that part of Ferguson's total betterment figure that was referable to, and provided the only evidential support for, count 6.

89 In our view, as at the date of commencement of Ferguson's trial, there was no material inconsistency in the Crown's position. By then, the trial judge had been told by the Crown that count 6 was not to be pursued; the Crown did not accept Giac Nguyen as an honest witness; and a nolle prosequi would be filed. His Honour ruled that the original count 6 was no more than an unproven allegation against Ferguson, in respect of which Ferguson was presumed innocent.[63] Accordingly, his Honour ruled, the Crown would be permitted to rely on the figure of $370,000 as betterment referable to the charged conspiracy.[64]

90 Reliance is placed by the applicants on the fact that the Crown did not, in fact, file a nolle prosequi at any time before these conspiracy trials had finished. This meant, so it was argued, that there was at least 'formally' a material inconsistency in alleging the full amount of Ferguson's betterment in the conspiracy trials, without having formally abandoned count 6. We disagree. What mattered was the unequivocal declaration of the Crown's position by the prosecutor before the Ferguson trial commenced. The judge was entitled to act on what he was told by the prosecutor, which had the effect of removing any inconsistency.

92 In the trial of Cox and Sadler, the judge ruled that evidence given by Lai, Le and Tran was such that the jury should be warned of the dangers of acting upon that evidence in the absence of corroboration.[65] The basis of that conclusion was not that these witnesses were accomplices, or were capable of being so regarded, but that their evidence was, in accordance with the principles laid down in DPP v Faure,[66] inherently suspect.

93 In the earlier trial of Ferguson, his Honour had ruled that no such warning was required in relation to the evidence given by Lai.[67] Ferguson complains in ground 5 of his notice of appeal of having been denied a Faure warning in relation to the witness Lai.

94 In R v Cox & Sadler (Ruling No 12) ('Ruling No 12'),[68] the judge set out his reasons for having declined to give a Faure warning in relation to Lai in the Ferguson trial, but determined that such a warning should be given in the Cox and Sadler trial. He noted in that ruling that there was no suggestion that Lai had ever had any dealings with Ferguson of the kind alleged in relation to Cox and Sadler. In fact there was no evidence that Ferguson had even been aware of the approach that Lai had allegedly made to Cox and Sadler. In his Honour's view, in relation to Ferguson, Lai's evidence was largely relevant as background only. In the Cox and Sadler trial, it was of paramount importance.

95 In our view, the distinction that his Honour drew between the role played by Lai in the case against Ferguson, and his role in the case against Cox and Sadler, was both accurate and warranted. For the reasons that his Honour gave, it was unnecessary in the trial of Ferguson to give a Faure warning regarding Lai.

96 Ferguson initially complained of the directions given by the judge as to what evidence might be capable, in law, of corroborating Le and Tran (grounds 13 and 14). Those grounds were expressly abandoned, however, and nothing more need be said about them.

97 Grounds 12, 13, 14 and 22 of the notice of appeal filed on behalf of Cox complain of various errors on the part of the judge in his directions to the jury regarding corroboration. Those grounds are in the following terms:

1. The learned trial judge erred in his directions to the jury concerning corroboration of the witnesses Duy Le and Loan Tran.
2. The learned trial judge erred by directing the jury that certain items of evidence were capable of corroborating the witness Duy Le and erred in permitting the jury to reason that the following pieces of evidence could amount to corroboration (see the Ruling at [2006] VSC 303R):

(a) Item A/5;

(b) Items A/6 - 8 ;

(c) Items A/9 - 11;

(d) Items A/12 - 14;

(e) Item A/16;

(f) Item A/18;

(g) Items A/22 - 26 ;

(h) Items A/27 - 28;

(i) Items A/29 - 41;

(j) Items A/43 - 49;

(k) Items A/51 - 62 ;

(l) Items A/68 - 80;

(m) Items B/12 - 16;

(n) Item 22.

1. The learned trial judge erred in his directions to the jury on the law of corroboration of witnesses who were accomplices and/or unreliable, and, in particular erred by inviting the jury to reason that while one piece of potentially corroborative evidence may not individually constitute corroboration, that piece of evidence may become corroborative "when taken in conjunction with other evidence" and that "the combined weight of a group of facts working together may be corroborative when individually each single one may not be".

1. The learned trial judge erred in his directions/warnings to the jury concerning the evidence of Duy Le and Loan Tran, and, in particular the learned judge erred by inviting the jury to consider that in the event that they found these witnesses to be corroborated it would no longer be "dangerous" to rely upon their evidence in order to convict the accused.

98 In the trial of Ferguson, the judge initially contemplated giving the jury both a traditional accomplice warning and a Faure warning in relation to Le. Clearly, on the Crown case, it was open to the jury to conclude that Le was an accomplice. It was submitted on behalf of Ferguson, however, that it would be both prejudicial and unnecessary to give an accomplice warning in circumstances where a Faure warning was to be given as well. An accomplice warning would, it was submitted, be premised on acceptance by the jury of the existence of the very conspiracy for which the Crown contended.

99 The judge accepted that submission. Accordingly, his Honour gave only a Faure warning in relation to Le. He adopted the same course in relation to Tran.

100 Subsequently, in the Cox and Sadler trial, his Honour took precisely the same approach. For that reason, the jury were not directed to consider whether Le or Tran were, relevantly, accomplices.

101 The notice of appeal filed on behalf of Sadler also contains four grounds of appeal relating to corroboration. Grounds 11, 13 and 20 replicate grounds 12, 14 and 22 of Cox's grounds of appeal.

102 Sadler's ground 12 differs in both form and detail from Cox's ground 13, but it covers some of the same ground. It is in the following terms:

1. The learned trial judge erred by directing the jury that certain items of evidence were capable of corroborating the witness Duy Le and erred in permitting the jury to reason that the following pieces of evidence could amount to corroboration (see Ruling at [2006] VSC 303R).

(a) The Operation Lulie arrests of 2 August 1999 and the alleged drug transaction on 3 August 1999 and in particular:

1. The Operation Lulie Report;
2. The evidence of Robert Hill that the applicant told him at 12.45 pm that he was expecting 4 to 6 ounces of heroin to be delivered;
3. Evidence that Stephen Cox failed to record the amount of heroin located in his daybook;
4. The evidence of witness Cheung that one ounce of heroin was planted on him;
5. The evidence of witness Agbayani as to what took place in the car on the way to the St. Kilda Road police complex;
6. Evidence of call charge records of telephone calls made that night;
7. Evidence that Stephen Cox was on duty on 3 August 1999.

(b) The absence of any diary note by Stephen Cox as to what took place on 3 September 1999;

(c) Diary entries of the applicant and Ian Ferguson indicating that they were working together on 9 April 2002;

(d) Evidence of telephone contacts between Ian Ferguson and Duy Le on 9 April 2002;

(e) Evidence of telephone contacts between the applicant and Duy Le on 8 April 2002;

(f) Evidence of LEAP checks conducted by the applicant on 8 April 2002;

(g) Evidence of the contents of a series of telephone calls and the contents thereof between the applicant, Ian Ferguson and Stephen Cox commencing on 9 November 2002 and following where no mention is made of Duy Le and the CEJA investigation into the purchase of the BMW motor vehicle;

(h) Evidence of telephone calls on 25 May 2000 between the applicant and Duy Le;

(i) Evidence that the applicant told Darren Sadler in the course of a telephone call on 14 November 2002 that Ian Ferguson obtained a discount on the Land Cruiser purchased by the applicant because Ferguson was a farmer;

(j) Evidence that the applicant did not use his St. Kilda Road Police telephone extension to contact Duy Le after October 2000;

(k) The evidence of "linked calls" on 3 January 2001;

(l) Evidence that the applicant did not use his mobile telephone to contact Duy Le after 8 April 2002;

(m) Evidence of Crown Casino records in relation to the applicant;

(n) Evidence of LEAP checks conducted by the applicant;

(o) The diary entries of the applicant and Ian Ferguson on 5 May 2000;

(p) The diary entry of the applicant of 16 May 2000 recording he was with Ian Ferguson and evidence of a telephone call from Ferguson to Duy Le on the same day.

103 At common law it is not necessary, in general, that evidence upon which a party relies be corroborated. There is, however, a rule of practice to the effect that a jury must be warned of the dangers of acting upon the uncorroborated evidence of a witness whose evidence may be regarded as suspect. The failure to give such a warning may, in a particular case, lead to a conviction being quashed.

104 In the present case, the grounds upon which the applicants rely complain not so much about the adequacy of the warnings given as about the directions regarding the evidence capable in law of amounting to corroboration.

105 Whether a particular item of evidence can amount to corroboration is governed by a number of fundamental principles. First, it must be evidence - independent of the witness to be corroborated - which tends to support the evidence of that witness that the crime was committed, and that the accused committed it.[69] It is a misconception to think that evidence relied upon as corroboration 'must itself be probative of guilt'.[70] The essence of corroborative evidence is its confirmation of other evidence that suggests the accused's involvement in the offence alleged.[71]

106 In R v Baskerville,[72] still a leading authority, Viscount Reading LCJ observed, in the context of accomplice evidence, that corroboration means some additional evidence rendering it probable that the account given by an accomplice is true. His Lordship added that in order to amount to corroboration, it was not sufficient for the evidence simply to verify any part of the testimony of an accomplice. It was necessary that it implicate the accused in the commission of the offence as well.[73]

107 The leading case in this country upon what constitutes corroboration is Doney v The Queen ('Doney').[74] The High Court there reaffirmed that in order for evidence to be corroborative, it must both support the evidence to be corroborated and 'involve' the accused in the commission of the alleged offence. It can do so by connecting, or tending to connect, the accused with the crime charged. It must show, or at least tend to show, that the account of the witness whose evidence is considered suspect is true. But it must do more. It must connect, or tend to connect, the accused with the commission of the crime, and not merely support the assertion that the crime has been committed.

108 Doney affirms that in order to be corroborative, evidence need not confirm the specific account of the witness to be corroborated, but rather the conclusion to which that account points.[75] It also establishes that corroborative evidence need not prove any proposition beyond reasonable doubt. Its role is to confirm other evidence, and thereby enable the jury to act more readily upon that evidence. In BRS v R,[76] Brennan CJ observed that:

[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends.[77]

It does so by providing support, from an independent and more trustworthy source, for the truth and reliability of the evidence to be corroborated.[78]

109 In Cross on Evidence,[79] J D Heydon observes that the requirement that corroborative evidence 'implicate' the accused creates its own difficulties. Sometimes evidence suggests that a witness is speaking the truth, but does not actually connect the accused with the commission of the crime. For example, evidence of motive or opportunity, standing alone, would not generally be regarded as capable of amounting to corroboration.[80]

110 Some evidence is characterised as 'intractably neutral' and therefore incapable in law of amounting to corroboration.[81] However, evidence is not 'intractably neutral' merely because it can be regarded as supporting competing hypotheses.[82] It is a matter for the jury, properly instructed,[83] to determine whether the hypothesis for which the Crown contends should be accepted. And merely because the accused suggests that some particular fact is not in issue does not render it 'neutral' in the sense described.

111 It was acknowledged on behalf of both Cox and Sadler that corroborative evidence could be circumstantial, and need not be direct. However, it was submitted that, notwithstanding clear authority to the contrary, no single piece of evidence could amount to corroboration unless, viewed in isolation from the evidence to be corroborated, it pointed directly towards guilt.

112 That submission must be rejected for two reasons. First as the High Court recently confirmed, circumstantial evidence should not be viewed 'piecemeal'.[84] That must be so when circumstantial evidence is relied upon as corroboration just as when it is relied on to establish guilt. The decision in Doney confirmed that a chain of circumstances, taken together, may amount to corroboration. That is so even though no single link in the chain would, by itself, be sufficient to do so.[85] Secondly, and in any event, there is no requirement that corroborative evidence be probative of guilt. That proposition was considered and rejected by this Court in R v Kuster.[86]

113 Of course, it is the responsibility of the trial judge to identify for the jury what evidence is capable of constituting corroboration. It is then for the jury to decide whether such evidence is in fact corroborative.[87] The evidence that can amount to corroboration will necessarily depend upon the particular circumstances of each case.[88] Plainly, it must be evidence extraneous to the witness who is to be corroborated.[89] A witness cannot corroborate himself or herself.

114 Corroboration may take the form of the evidence of another witness. It may also be found in a document or other exhibit, or in the accused's admissions, or his or her own conduct. As we have indicated, it may be found in the accused's own conduct. Thus, lies which demonstrate a consciousness of guilt have been held to be corroborative.[90] The same is true of flight,[91] and possession of incriminating material.[92] Propensity evidence, when properly admissible, can also amount to corroboration.[93]

Cox and Sadler corroboration grounds considered together

115 It is worth noting, at the outset, that his Honour's charge to the jury regarding corroboration was both extremely long and extraordinarily detailed. There was little, if any, disagreement between the Crown and the defence as to the general principles that govern this area. The only real point of contention was the extent to which both Le and Tran could be said to have been corroborated.

116 It was common ground that Lai's evidence was not corroborated. The jury were so directed.

117 In Ruling No 16,[94] the judge indicated that he would approach the matter of corroboration just as he had done in the trial of Ferguson. After summarising separately the evidence given by Le against both Cox and Sadler, his Honour turned to a number of tables provided by the Crown setting out the pieces of evidence which, it submitted, could amount to corroboration. Unfortunately, there were a number of such tables, and they were difficult to follow. They identified over 150 pieces of evidence that were said to be capable of corroborating Le.

118 There was extensive debate over several days regarding the Crown's tables. The transcript is not altogether clear on this point, but it seems that objection was taken to almost every item in the Crown's list of potentially corroborative evidence. The judge, in a careful ruling, went through the items relied upon as potentially corroborative. He accepted some, and rejected others.

119 In broad terms, the Crown's position was that both Le and Tran were amply corroborated. His Honour directed the jury that they could so find. They were told, correctly, that it was for them to determine whether a particular piece of evidence, said by the Crown to be corroborative, should be so regarded.[95]

120 Cox now contends that, of the pieces of evidence left to the jury as potentially corroborative, there were 71 which could not, in law, be so regarded.[96] Sadler takes a similar approach though, as previously indicated, he formulates his ground of appeal somewhat differently.

121 Regrettably, neither the grounds of appeal nor the written submissions filed in support make it easy to understand the points being made. It is necessary to focus in some detail upon the transcript of the argument that preceded Ruling No 16 as well as his Honour's charge regarding corroboration. The ruling itself, which was delivered before the charge, set out with commendable clarity both his Honour's understanding of the relevant legal principles and his conclusions regarding the evidence that was capable of amounting to corroboration.

122 The judge instructed the jury that, in order to constitute corroboration, any piece of evidence upon which the Crown relied would have to be independent of Le (and of Tran) and would also have to confirm, in a material respect, the evidence which they gave against Cox or Sadler, as the case might be. His Honour instructed the jury that the evidence would have to support both the existence of the conspiracy alleged, and the participation of Cox and/or Sadler in that conspiracy.

Evidence said to be corroborative as against Cox

123 The judge turned initially to the events of August 1999. Le's evidence was that, in the week prior to 2 August 1999, he had arranged to buy seven ounces of heroin from Cheung, a man who had supplied him previously. According to Le, he met with Cheung on 2 August 1999 in the Burwood Kmart car park. He told Cheung that he wanted better-quality heroin. Cheung told him that he could procure either three or four ounces of good quality heroin, but that the balance that had been ordered would be of ordinary quality only.

124 Le's evidence was that Cheung then arranged for a confederate, Agbayani, to come to the car park and bring the heroin with him. While seated in Agbayani's car, Le was allowed to inspect the heroin. Le then told Agbayani that he needed to make a telephone call in order to arrange for the money to be delivered. Le said that he then got out of the car, telephoned Cox, and told him what was happening. According to Le, Cox instructed him to leave the area. Shortly thereafter, both Cheung and Agbayani were arrested.

125 Le said that, on the following day, 3 August 1999, at the St Kilda Road Police Complex, Cox gave him one ounce of the heroin that had been seized the previous evening as payment for the services that he had rendered.

126 The judge instructed the jury that, essentially, the Crown relied on the following evidence as corroborative of Le's account of these events.

127 First, based on their police diaries, Cox was on duty at the St Kilda Road Police Complex on 3 August 1999, while Sadler and Ferguson were not. The Crown submitted that this was no coincidence, and tended to confirm Le's evidence that it was Cox, and not one of the other police officers, who gave him the heroin on that day. In relation to that first piece of evidence, his Honour told the jury that the diary entries would not be sufficient on their own to corroborate Le. They could only have that effect if the jury were to find, in addition, that Cox had been party to a theft by the police of some of the heroin seized the previous evening.

128 The Crown invited the jury to draw precisely that inference. It did so upon the basis of a discrepancy between the amount of heroin that Agbayani had supposedly brought to the car park and the amount claimed to have been seized by the police. Cheung gave evidence that Agbayani had brought eight ounces of heroin to the car park. Even if that evidence were rejected, police intelligence suggested that an order had been placed for six ounces. The details of that intelligence were set out in the report concerning the operation (the 'Lulie report'), and in various police diaries. On the Crown case, there was evidence independent of Le that at least six ounces of heroin had been brought to the car park that night.

129 A difficulty arose from the fact that the police who attended the scene recorded a seizure of four balloons, each containing one ounce of heroin, in the bag located in Agbayani's car, and a further ounce found in the possession of Cheung. That made a total of five ounces. That represented less heroin than Le said he had arranged to procure, but more than was accounted for in the eventual prosecution of Agbayani and Cheung.

130 There was, of course, a necessary link to be found before this evidence could be considered corroborative. If Le were to be believed when he said that Cox gave him an ounce of heroin the following day, it was essential for the Crown to demonstrate that he could not have taken any of the heroin himself while he was still sitting in Agbayani's vehicle. Both Cox and Sadler invited the jury to conclude that any discrepancy in the amount of heroin seized arose as a result of Le having helped himself to some portion thereof. Le specifically denied having done so.

131 The Crown relied upon the statements made by Cox and Sadler in the prosecution of Cheung and Agbayani in order to show that Le could not have taken any of the heroin. Those statements, taken at face value, made it clear that Le had no opportunity to help himself to any heroin. It would follow, so the Crown submitted, that Cox and Sadler must have kept the missing heroin for themselves. (As is discussed below, the Crown relied on this evidence as corroboration of Le against Sadler as well.)

132 There were other, less important, aspects of the car park incident upon which the Crown also relied as corroboration. It is unnecessary for us to set them out here. In the end, the question to be determined is whether the judge was correct when he instructed the jury that evidence of this nature could be regarded as amounting to corroboration.

133 If considered in isolation, the mere fact that there was a discrepancy regarding an ounce or so of heroin arising out of the car park transaction could not amount to corroboration. The existence of such a discrepancy would support Le's evidence in part, but would not relevantly implicate Cox or Sadler in the offence charged. As previously indicated, however, when considering whether a particular witness is corroborated, a jury may find corroboration in circumstantial evidence. Individual pieces of evidence, which are not corroborative when considered in isolation, may tend to implicate the accused when they are taken as a whole.

134 In our opinion, no single piece of evidence relating to the August 1999 incident, or its immediate aftermath, directly implicates either Cox or Sadler. However, when the evidence is considered as a whole, the picture presented is quite different.

135 In his ruling regarding corroboration, the judge dealt at some length with the incident at the car park as potentially corroborative. He explained why, when viewed as a whole, that evidence could be regarded as not only supporting Le as a witness of truth, but also as implicating Cox in the conspiracy alleged. His analysis was, with respect, sound. No appealable error has been demonstrated.

136 The next piece of evidence said to be corroborative of Le in the case against Cox arose out of what was described as the 'Kinnear Street transaction'. This took place some time after Le had been arrested and released on bail, but before Cox left the police force.

137 Le's evidence was that he paid Cox a sum of money for heroin. They then both drove to Kinnear Street, Footscray. According to Le, Cox pointed to a bush as being where the heroin was located. Le retrieved the heroin, and Cox then drove away.

138 The Crown contended that there was independent evidence that a meeting took place between Cox and Le in Footscray on 3 September 1999, a date that accorded generally with Le's account. The evidence included Cox's police diary, which recorded such a meeting; the fact that there were five telephone calls between himself and Le one day before the alleged transaction took place; and one call by himself to Le on the day in question. Indeed, the last call was made only moments before the meeting was said to have taken place.

139 As to the subject matter of the meeting, the Crown relied on Cox's failure, in breach of standard police practice, to record in his diary any reference to what had transpired. In addition, the Crown called evidence to the effect that a police officer, acting properly, should not have met with an informer on his own.

140 Cox, in ground 12(b), essentially confined his complaint (regarding the Kinnear Street transaction being treated as corroboration) to the last of these matters, namely, any reliance having been placed upon the absence of mention in his diary of the subject of the meeting.

141 In our view, this complaint is without substance. It was open to the jury to conclude that Cox's failure to record in his diary what took place during his meeting with Le provided support for Le's evidence that Cox had sold him heroin on that day. Plainly, the absence of any mention of the subject of the meeting raised serious questions as to its legitimacy or purpose. Contrary to Cox's submission, it cannot be said that this evidence was 'intractably neutral'.[97]

142 Broadly speaking, the next matter relied upon as corroborative of Le as against Cox, was the large number of telephone calls made between Cox, on the one hand, and either Sadler or Ferguson, on the other, all at about the time that Le claimed he had met with one or other of them. The Crown relied upon the timing and sequence of the calls as bolstering this aspect of its case. The judge was careful to remind the jury, in this regard, of the need for caution in drawing inferences adverse to the accused.

143 Cox submitted that the judge erred when he directed the jury that this evidence was capable in law of amounting to corroboration. We reject that contention. The sheer number of calls, coupled with their timing (which was not consistent with the normal pattern of calls made between these three individuals), was supportive of the conspiracy alleged, and specifically of Le's account of what was happening at the time.

144 The Crown next relied upon a telephone conversation which took place between Cox and Sadler on 13 November 2002. That conversation, unlike most of the others, was recorded by way of telephone intercept.

145 The Crown submitted that, throughout their discussion, Cox assiduously avoided any reference to a matter that would have been of considerable significance to himself and Sadler, and one that would certainly have been raised had they been innocent of the conspiracy alleged, as they claimed.

146 As we have previously noted, it appeared that some two years earlier, in November 2000, Le had acquired a second-hand BMW from a man called Frangoudes. That vehicle was never registered in Le's name. According to Le, he later sold it to Ferguson and provided him with the vehicle registration transfer form. At the time, only the seller's details were set out. The agreed price was $30,000. Le said that Ferguson paid in both cash and heroin.

147 In November 2002, Le was telephoned by Tran. She told him that the police had been to her home, and had questioned her about the BMW. Le learned that the police had also gone to his parents' home looking for him. He said that he drove to a telephone box and tried unsuccessfully to contact Ferguson on the two numbers that he had for him. He claimed that he also tried unsuccessfully to telephone Sadler. He then sent a text message to Sadler's mobile phone which said: 'Right said Fred' (Fred being, as we have noted, a name used by Le[98]).

148 According to Le, Sadler then telephoned him. Le told Sadler that the police were asking questions about the BMW. Sadler told him to stay where he was, and said that he would call him on Monday. The events described above were said to have taken place on either a Saturday or Sunday.

149 According to Le, on the following Monday Cox telephoned him. He told Cox that the police had been asking Tran questions about the BMW. He said that after he spoke to Cox on that occasion, he never heard from either Cox or Sadler again. Le was eventually arrested a few weeks later, on 6 December 2002.

150 The Crown submitted that Le's evidence was corroborated, as against Cox, by the fact that, during the course of the intercepted telephone conversation between Cox and Sadler on 13 November 2002, not one word was said about the BMW or the fact that the police were taking an interest in that vehicle. The Crown invited the jury to reason that Cox had deliberately avoided that subject during the course of that call because he knew that he was under suspicion, and believed that his telephone calls were being monitored.

151 His Honour left this evidence to the jury as potentially corroborative. Although it was perhaps not as strong as some of the other material said to corroborate Le, we are not persuaded that he erred in doing so. It was open to the jury to conclude that Cox deliberately avoided any mention of the BMW, a matter which he knew to be of central importance to the police investigation, because he was aware that Le's relationship with Ferguson posed significant dangers to Sadler and himself.

152 Next, the Crown relied upon the evidence given by Curtin as to financial betterment. We have already considered and rejected Cox's complaint that this evidence was inadmissible. Plainly, if the evidence of betterment was admissible, this was because it tended to show that Cox had an unexplained improvement in his financial position at a time proximate to the time when, according to Le, the most substantial amount of trafficking of heroin took place. Obviously, the evidence of financial betterment met all the requirements necessary in order to constitute corroboration.

153 Finally in relation to Cox, the Crown relied upon the particular closeness of his relationship with both Sadler and Ferguson as corroborative of Le's evidence. There was a great deal of evidence led at the trial as to the nature, and extent, of that relationship. Ground 13 of Cox's notice of appeal complains of 'item 22' having been left to the jury as potentially corroborative. 'Item 22' was the close association that existed between the three police officers.

154 In our opinion, the jury was entitled to conclude that the relationship between these three men went well beyond their being mere colleagues and, indeed, well beyond their simply being good friends. For example, there was evidence of significant financial dealings between them, including a loan in April 2002 of $3,000 by Ferguson to Cox. There was also evidence of a joint business venture that they were contemplating, which would have involved a substantial borrowing from the National Australia Bank.

155 In Ruling No 16, the judge said of the close association between these three men:

I consider that the evidence as to the association between Cox, Sadler and Ferguson is a circumstantial fact which, taken with other facts, is capable of corroborating the involvement of Cox in the conspiracy alleged by the Crown. Standing alone that fact would not, of course, corroborate the conspiracy or Cox's involvement in it. However the close relationship is relevant to evidence, firstly, [as] a relationship of trust between Cox and Sadler and Ferguson, and, secondly, to the knowledge of and acceptance by Cox of the rapid increase in Ferguson's conspicuous wealth.

156 The judge made it plain that the close association that existed between them should not be viewed in isolation, but rather in conjunction with other evidence that tended to support Le's account of their involvement in the conspiracy alleged. As previously indicated, evidence may be corroborative if it shows that the accused was involved in the commission of the offence charged, though it does not necessarily incriminate him directly in the commission of that offence.[99]

157 It follows that no error of any kind has been demonstrated by Cox in relation to his Honour's charge regarding corroboration. There was in fact a substantial body of evidence capable of corroborating Le, and it was properly left to the jury to determine whether in fact it did so.

Evidence said to be corroborative as against Sadler

158 When his Honour came to deal with Sadler, he instructed the jury, as he had done in relation to Cox, that in order for evidence to be corroborative, it had to relate to both the existence of the conspiracy alleged and the involvement of Sadler in that conspiracy. Again, his Honour reminded the jury that it was for them to determine whether they accepted the evidence in question, and to consider whether it provided support for Le.

159 Returning to the events at the car park on 2 August 1999, the jury were told that they had to determine whether Le was corroborated in so far as he claimed that either Cox or Sadler had retained at least one ounce of the heroin seized that night, which Cox then gave to Le the following day.

160 The jury were told that, as against Sadler, the evidence said by the Crown to be corroborative was as follows. First, the fact that at about 12.45 pm on 2 August 1999, Sadler told Detective Hill, a police officer later involved in the arrests of Cheung and Agbayani, that he was expecting some four to six ounces of heroin to be brought to the car park that evening. Detective Hill made a note to that effect. The Crown invited the jury to conclude that, by describing the amount of heroin to be delivered that evening in that somewhat vague way, Sadler was deliberately leaving open the possibility of secreting some of it for himself.

161 Next, there was the evidence of Agbayani that, following his arrest that night, he was taken back to the police station in a car driven by Cox. He was told to keep his head down. He claimed that he could see, out of the corner of his eye, that the officers were tampering with the brown paper bag containing the drugs. He said that one of them opened the bag, appeared to rummage inside, and then placed it on top of the centre console.

162 Agbayani was not an accomplice in relation to the conspiracy charged. There was no reason why his evidence could not corroborate that of Le. That evidence was, in our view, capable of amounting to corroboration.

163 Le said that on 5 May 2000, he bought a quantity of heroin from Sadler and Ferguson for the sum of $8,400. As corroboration, the Crown relied upon a MasterCard transaction which recorded that on that day, the loan account of Tran was debited to that exact amount. The judge directed the jury that this evidence was capable of amounting to corroboration. His Honour's reasoning, as set out in Ruling No 16, was as follows:

In particular there were telephone communications between Sadler and Duy Le before Duy Le and Loan Tran attended at the bank at 10.40 am. Sadler telephoned Duy Le at 10.36 am. At 10.45 am, while Duy Le and Loan Tran were in the bank, Ferguson and Sadler left the Drug Squad offices. At 11.04 am there was a nine second call from Ferguson to Duy Le. Ferguson and Sadler's diaries and information report record a meeting with Duy Le at the casino at 11.30 am. Six days later Sadler made two deposits totalling $4,200 into his bank, albeit in different denominations to that withdrawn from Loan Tran's account. Added together, in my view those facts constitute evidence capable of corroborating the account of Duy Le.[100]

164 The Crown invited the jury to conclude that it was no coincidence that the amount of $8,400 happened to equate precisely to the price of two ounces of heroin. Le claimed that he bought exactly that amount from Sadler on that day.

165 There was other evidence that was said to corroborate Le regarding this transaction. The Crown relied upon a diary entry by Ferguson which recorded that he and Sadler went on patrol together at 10.45 am that day. That was linked to diary entries by Cox and Sadler, which indicated that, at 11.30 am, they met with Le at Crown Casino. In addition, there was evidence that on the same day, Le made a series of telephone calls to Sadler and Ferguson.

166 The jury were plainly entitled to treat the sequence of events outlined above as corroborative of Le's account. It would be surprising if they had not done so.

167 The next item of evidence relied upon by the Crown as corroborative of Le arose out of his testimony that on 16 May 2000, he met Sadler in Bromby Street, South Yarra, in order to buy heroin from him. In that regard, the Crown focused on what it described as 'the laptop transaction'.

168 According to Le, he gave Sadler a laptop computer as part payment for the heroin which Sadler gave him that day. There was evidence that on 15 May 2000, a laptop of the same type as was allegedly given to Sadler was stolen from the premises of cake manufacturer, Sara Lee. There was evidence that that laptop had, earlier on 16 May 2000, come into the possession of Le.

169 In addition, on 16 May 2000, there were calls from the Drug Squad offices to Le's telephone at 1.24 pm and 2.25 pm. Sadler's diary recorded at 2.30 pm a 'Code 1 with Ferguson to CBD' concerning 'Operation Afore'. That was an operation that had already concluded, the inference being that a false entry was made in order to conceal Sadler's dealings with Le. At 2.40 pm, there was a short telephone call from Le to Ferguson's mobile. That call was made from Albert Park, which was in the vicinity of the location at which Le stated the relevant transaction had taken place, namely, 'the usual place'.

170 Of particular significance, so the Crown submitted, was the fact that the stolen laptop eventually ended up in the possession of Cox.

171 The judge concluded that this evidence was capable of supporting the account given by Le, and could amount to corroboration. In our opinion, that conclusion was plainly correct.

Communications between Le and Sadler on 25 May 2000

172 On 25 May 2000, Le absconded while on bail. His evidence was that, in the days immediately prior to his having absconded, Ferguson and Sadler kept him fully informed as to what the police were doing, thereby enabling him to evade arrest. He said that he spoke to Sadler on a number of occasions on 25 May 2000, and the telephone records bore that out.

173 There was also an entry in Sadler's diary for that day indicating that, at 1.30 pm, he went to Le's flat in Empire Street, Footscray, and left a business card there. The Crown relied upon the fact that Sadler knew full well, by 25 May 2000, that Le no longer lived at that address. In other words, the Crown invited the jury to conclude that Sadler was engaged in some kind of elaborate charade intended to disguise the fact that he had been in contact with Le.

174 As his Honour correctly held, this evidence was capable of amounting to corroboration. So too was the evidence of further telephone contacts between Sadler and Le on 5 June 2000. These communications were said to support Le's claim that, after he absconded, he had regular contact with, and met, both Sadler and Ferguson. No credible explanation was offered for these further communications.

Further contacts between Le and Sadler during 12-17 March 2002

175 In the period between 12 and 17 March 2002, Le spoke frequently to both Sadler and Ferguson. Importantly, this was at a time when these two officers were on leave. They were well aware that other members of the Drug Squad were looking for Le, who had been missing since he absconded on bail.

176 The Crown relied upon the fact that Sadler made no reference in his diary to the fact that he had spoken to Le repeatedly during that period. We agree with the judge that this evidence was capable of amounting to corroboration.

177 Le claimed that on 9 April 2002, he and Tran met with Sadler and Ferguson in South Yarra. Any such meeting would have been of particular significance as Le was being sought by the police at that time.

178 In support of Le's account, the Crown relied upon a series of telephone calls that were made to Le from a pay phone located directly opposite the St Kilda Road Police Complex.

179 In addition, at 2.19 pm the previous day, Sadler conducted a LEAP check on both Le and Tran. Subsequently, several calls were made directly from the St Kilda Road Police Complex to Le's mobile phone. Calls were also made from Sadler's mobile phone, and from his land line, to Le's mobile phone.

180 In our opinion, the jury were entitled to regard this evidence as corroborative.

181 Le claimed that on 23 April 2002, Tran had called to tell him that he had featured on the Crime Stoppers programme on television. He said that he telephoned Sadler who, shortly afterwards, rang him back.

182 The Crown relied upon the fact that Le had indeed featured on that programme that evening as well as in the newspapers the following morning. The fact that Sadler had contacted Le was, of course, particularly significant given that the police were looking for him at the time.

183 In our view, this evidence afforded support to Le as a witness of truth and, relevantly, tended to implicate Sadler in the commission of the conspiracy alleged.

184 On the afternoon of 9 November 2002, Le attempted, on several occasions, to contact Sadler on his mobile phone. At 3.57 pm that day, he sent Sadler a text message. At 6.19 pm, Sadler made a two-second telephone call to Le. At 6.27 pm, someone rang Le from a phone box located close to Sadler's home in Keilor. Soon afterwards, there were a series of further calls from Sadler to Ferguson, and Sadler to Cox.

185 Once again, in our view, the fact that Sadler was engaged in regular communication with Le, a man who was then being sought by the Drug Squad, afforded corroborative evidence of Le's account.

186 It is unnecessary to traverse in any detail the many other telephone contacts upon which the Crown relied as corroborative of Le. In addition, the Crown relied upon the evidence of two police officers, Craig Blakeley and David Newman, who each said that they spoke to Sadler about the whereabouts of Le after he had absconded. Their evidence was that Sadler said nothing to either of them about having been in contact with Le throughout that period. That too provided support for Le, and tended to implicate Sadler in the conspiracy alleged.

187 The Crown relied upon the evidence given by Curtin as to financial betterment, involving, in Sadler's case, an increase in the value of his assets of about $190,000 over the period of the alleged conspiracy, and cash transactions totalling approximately $164,000 that could not be explained.

188 Self-evidently, if, as we have held, Curtin's evidence was admissible, it was capable of amounting to corroboration.

189 As with Cox, the Crown also relied upon the closeness of the relationship between these three police officers as generally supportive of Le, and, when combined with other evidence, as corroborative of his testimony. For the reasons given earlier in relation to Cox, we agree with his Honour that this evidence was capable of amounting to corroboration.

190 It follows that, as with Cox, none of Sadler's contentions regarding evidence having been wrongly left to the jury as potentially corroborative has been made out. There was ample evidence capable of corroborating Le, and it was properly left to the jury to determine whether in fact it did so.

Complaint of specific error in the charge to the jury

191 The judge was clearly aware of the difficulty that might arise if the jury were to find, as they were almost certain to do, that Le's evidence was amply corroborated. His Honour gave effect to the cautionary note sounded in R v Radford:[101]

To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case.

192 Both Cox (ground 22) and Sadler (ground 20) complain that his Honour invited the jury to treat Le's evidence (and also that of Tran) as no longer 'dangerous' to act upon if found to be corroborated. In our view, the judge did no such thing. He warned the jury, in accordance with Faure, that it would be dangerous to act upon their evidence in the absence of corroboration. He went on to instruct them, in the clearest of terms, that even if they found that the evidence of these witnesses was corroborated, that evidence should still be scrutinised with great care.

193 There is no set form of words which must be used when a judge directs a jury as to corroboration.[102] The cases typically hold that the judge should make it clear to the jury, in the appropriate case, that it is dangerous to convict without corroboration. However, the rule that the jury must be warned of this danger does not mean that any particular form of words must be used or that, if it is not, the summing-up is faulty and the conviction must be quashed.[103]

194 The fact that the word 'corroboration' is not used is not fatal. Corroboration is not a word that a jury would be likely to understand without explanation. Nor is it necessary for the judge to use the word 'dangerous'. The critical point is to ensure that the jury understand why suspect evidence should be approached with caution, and why they should exercise particular care before acting upon it. That message can be conveyed in different ways.

195 Of course, a comment to the effect that the warning no longer applies if corroboration is present can give the impression that special care is no longer needed in evaluating the witnesses' evidence.[104] That would be quite wrong. But no such impression was created in the present case, when the judge moved from using the term 'dangerous' - when dealing with uncorroborated evidence - to telling the jury that they should 'scrutinise with great care' Le's evidence even if corroborated. Certainly there was no protest on the part of counsel who appeared for the accused at trial. It did not give rise to any miscarriage of justice.

196 Originally, the Crown filed a single presentment against Cox, Sadler and Ferguson and Ferguson's wife, Joanne. That presentment contained some 16 counts.

197 On 9 May 2005, the Crown filed over a fresh presentment which contained seven counts. As noted earlier, count 1 of that presentment alleged that Cox, Sadler and Ferguson, between 1 April 1999 and 6 December 2002, conspired with others to traffick heroin in not less than a commercial quantity. The remaining counts involved money laundering and theft.

198 On 21 July 2005, the judge delivered Ruling No 4,[105] in which he determined several matters. He held that there was but one conspiracy alleged. This was important so far as the admissibility of the evidence of Lai was concerned. He also ordered that Cox and Sadler be tried separately from Ferguson and his wife, and that the theft counts be severed from the conspiracy and money-laundering counts.

199 The judge noted that Cox and Sadler had both applied to have Lai's evidence excluded from their trial on the conspiracy count. The particulars of the conspiracy provided by the Crown at that stage were as follows:

• The Crown allege that between April 1999 and December 2002, Stephen Cox, Glenn Sadler and Ian Ferguson (who were members of the Victorian Drug Squad and formed into a special unit to investigate heroin trafficking) entered into an agreement to traffick in a commercial quantity of heroin for gain by using their positions in the Victorian Drug Squad.
• This agreement envisaged the following:

Obtaining heroin when opportunities arose during the course of investigations conducted by these police officers, for example:

(i) keeping some of the heroin seized during arrest situations and;

(ii) obtaining heroin from sources known to the conspirators from information available to them as investigators.

• Supplying the heroin to persons they could trust such as informers (persons who had been arrested and charged but had been released back into the community on bail upon the understanding that they would provide police with information about drug trafficking and the police would provide evidence of their cooperation to Courts on their subsequent pleas).
• Providing protection to these informers from other police interference while carrying out their illegal activities.
• Funding purchases of heroin in part from thefts of money when opportunities arose.
• It is not alleged that Ken Lai, Duy Le or McCabe joined this particular conspiracy.

200 As his Honour noted, Le and Lai were the two principal witnesses to be called on behalf of the Crown (in what had originally been envisaged as a joint trial of Cox, Sadler and Ferguson). His Honour summarised, in broad terms, the evidence to be given by each of these two witnesses. As will be seen, he noted that there was a strong link between them.

201 Le had a background in trafficking heroin. In October 1988, he was charged with aggravated burglary, but released on bail. In January 1999, he was charged with trafficking one gram of heroin in the Springvale area, and remanded in custody. Upon pleading guilty, he was sentenced to four months' imprisonment, suspended for two years.

202 Subsequently, on 21 April 1999, Le was arrested by Cox and Sadler as a result of information provided by Lai. He was charged with trafficking heroin and remanded in custody. Some time after his remand, he was visited in prison by Sadler and his superior, Detective Hill. They proposed that, if Le provided them with information and set up the arrest of other drug dealers, they would help him to get a reduced sentence on his trafficking charge. Le agreed to do so. As a consequence, he was released on bail. He then proceeded to meet with Cox, Sadler and Ferguson at various locations, including the St Kilda Road Police Complex, in order to give them information he had about pending drug deals.

203 As for Lai, in the early part of 1999 he was arrested several times for drug offences. Eventually, he was remanded in custody to the Melbourne Custody Centre. A short time later, Cox and Sadler visited him there. They offered to help him if he agreed to provide information on drug dealers including, in particular, Le. Lai agreed to their proposal. A short time later, he was granted bail on the basis that he was assisting them with an investigation.

204 Lai then helped Cox and Sadler to establish contact with Le. He acted as intermediary to introduce a Vietnamese undercover police officer to Le. Lai also arranged to buy some heroin from Le on behalf of the undercover police officer.

205 Throughout that period, Lai also supplied Cox and Sadler with information concerning other drug dealers. He claimed that, in addition to asking him for information, they also invited him to go into business with them. They told him that they could supply him with heroin at a lower price than he was then paying. They discussed with him the amount he could make by on-selling heroin bought at that price. At that time, Lai was in financial difficulty. He was told that this would be the answer to all of his problems.

206 In addition, Lai claimed that Cox and Sadler asked him whether he would be prepared to help them arrest drug dealers in return for a share of the heroin seized. He would provide them with information leading to a 'bust' and they would then give him some of the drugs seized as payment. He would then sell that heroin, under their protection, and share with them the proceeds. Lai claimed that, although he had a number of discussions along these lines with Cox and Sadler, he ultimately told them that he did not wish to proceed with their proposal.

207 Lai said that Cox and Sadler told him that they would pay him cash for information he provided on dealers. He asked if they would pay him for the information that he had previously given them regarding Le. As a consequence, he was taken to the St Kilda Road Police Complex and introduced to another police officer who was the superior of Cox and Sadler. That officer gave him $1,000 in cash as a reward for having informed on Le. After the officer left, either Cox or Sadler (Lai was not sure which) seized the money from him. Lai said that it was as a result of that treatment that he decided not to have anything further to do with Cox or Sadler, or to provide them with further information. He claimed that they subsequently threatened and assaulted him. As a result, he absconded while on bail. He was later arrested.

208 The question the judge had to determine was whether, in these circumstances, Lai's evidence should be received. Both Cox and Sadler (though not, it would seem, Ferguson, at that stage) objected to the evidence. They submitted that, as framed, the Crown case against them involved not one, but two, conspiracies. The first concerned their attempt to recruit Lai to traffick heroin. The second concerned Cox's recruitment of Le to traffick heroin, and Sadler and Ferguson having joined him in that arrangement.

209 In support of their contention, Cox and Sadler drew attention to what they submitted were a number of key differences between, on the one hand, their supposed dealings with Lai, and, on the other, their supposed dealings with Le. In particular, it was noted that:

• the alleged attempt to recruit Lai took place in May 1999. The first alleged approach to Le did not take place until some months later, in early August 1999;[106]

• there was no evidence of any involvement by Ferguson in any attempt to involve Lai in any conspiracy;

• the proposal made by Cox and Sadler to Lai, and that made by Cox to Le, differed significantly. Lai alleged that it was proposed that he receive a share of any profits made on the sale of heroin. By contrast, Le agreed only to purchase heroin in his own right, which he would then on-sell to others; and

• the nature of the approach to Lai, which was gradual, differed greatly from that adopted in relation to Le, which was sudden and unexpected.

210 The Crown replied that there was a clear nexus between the two approaches. In each case, the accused cloaked their criminal conduct under the guise of legitimate investigation. They did this first by arresting Lai, and later Le, for trafficking. They then recruited each of them, in turn, as an informer. In each case, as the relationship developed, the offer was made to supply them with heroin, which they would then on-sell to others. In each case, the object was the same, namely, the use by the police of an informer for the purposes of trafficking heroin.

211 The Crown accepted that there was no evidence of any involvement by Ferguson in any conspiracy involving Le in August 1999, when he was first approached by Cox and Sadler. However, the Crown submitted that Ferguson later joined that same conspiracy. Indeed, he took over as the person responsible for supplying Le with heroin. In other words, on the Crown case, this was a single conspiracy to which Ferguson had attached himself.

212 The judge recognised that the Crown was obliged to prove the specific conspiracy alleged, and not some different conspiracy.[107] However, his Honour also noted that it was well established that a single conspiracy might exist and endure over a period of time. As part of that ongoing conspiracy, the parties might undertake, and effect, a number of transactions pursuant to its common object, without thereby entering into a number of separate conspiracies distinct from the overall plan.[108]

213 His Honour rejected the application to exclude the evidence of Lai. He held that the allegations regarding Lai did not relate to a separate conspiracy, different from that alleged by the Crown. He said:

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.

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. 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, 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.

214 As previously indicated, Lai gave evidence at the trial of Ferguson as well as the trial of Cox and Sadler. Given that he had no involvement whatsoever with Ferguson, his evidence was of little direct significance in that first trial.

215 The question whether Lai's evidence should be admitted as against Cox and Sadler arose again at the commencement of their trial. It was submitted on their behalf that, having regard to the way in which the Crown had relied upon Lai's evidence in the Ferguson trial, his Honour should revisit his earlier ruling. That application, too, was rejected.[110]

216 The judge repeated his earlier finding that there was a clear nexus between the approach that Cox and Sadler had made to Lai, and their subsequent dealings with Le. He found that the Crown case was, and always had been, that the initial approach to Lai was the forerunner to the ultimately successful move by Cox and Sadler to recruit Le as the vehicle through whom they were to traffick drugs.

217 The judge rejected a submission that, in the trial of Ferguson, the Crown had resiled from its original one-conspiracy thesis, and had put forward instead a two-conspiracy case. He ruled that there had been no departure by the Crown from its original case, and that the evidence of Lai remained relevant and admissible.[111]

218 In the trial of Ferguson, the Crown case had been that the conspiracy was already on foot before Ferguson became party to it. There was no evidence that Ferguson had anything to do with the initial approach by Cox and Sadler to Lai.

219 However, in the trial of Cox and Sadler, the evidence concerning Lai assumed much greater significance. As his Honour put it, this was for the 'obvious reason' that the Crown were alleging that Cox and Sadler were parties to the conspiracy alleged even when the approach was made to Lai. In that respect, his Honour noted the comments by the prosecutor that the evidence of Lai would receive 'far greater emphasis' in the trial of Cox and Sadler than it had in the trial of Ferguson.[112]

220 The notice of appeal filed on behalf of Ferguson contains two grounds relating to Lai. Ground 5 complains of the failure by the judge to give the jury a Faure warning in respect of his evidence. We have already considered that ground, and concluded that it is without substance.

The learned trial judge erred in admitting the evidence of the witness Kenneth Lai.

The ground is somewhat curious given that no objection was taken on behalf of Ferguson to the evidence of Lai when his Honour delivered Ruling No 4 on 21 July 2005. In any event, we consider that Lai's evidence was relevant, and admissible, in the trial of Ferguson. It was relevant because it provided critical background to the conspiracy into which Ferguson was alleged to have entered. It will be noted in that regard that the dates of the alleged conspiracy extended between 1 April 1999 and 6 December 2002. The approach by Cox and Sadler to Lai took place in May 1999, within the period of the conspiracy as charged.

Cox and Sadler's Lai grounds - Grounds 5, 6 and 7 (Cox) and 6, 7 and 8 (Sadler)

222 The notice of appeal filed on behalf of Cox, and that filed on behalf of Sadler, each contain three grounds in relation to the evidence of Lai. In the case of Cox, these are grounds 6, 7 and 8, and, in the case of Sadler, grounds 5, 6 and 7. They are in identical terms:

The learned trial judge erred by admitting into evidence in the applicant's trial the evidence of the witness Mr Kenneth Lai.

The learned trial judge erred in his directions to the jury concerning how the jury, in their deliberations were, and were not, to use the evidence of Mr Kenneth Lai.

The learned trial judge erred in ruling that in order to convict the applicant the jury need not be satisfied beyond reasonable doubt as to the evidence of Mr Kenneth Lai concerning the alleged corrupt approach made to him in or about April and May 1999.

It is necessary, in order to deal with these grounds, to summarise in more detail than we have previously done the evidence that Lai actually gave in the trial of Cox and Sadler.

223 Lai said that, in early 1999, he had been arrested several times for possessing and trafficking drugs. He was eventually remanded in custody. At one point, before being so remanded, he was approached by members of the Asian Squad. They told him that they had information that he had been involved in an aggravated burglary. He denied any involvement in that offence, though he agreed that he was present at a discussion regarding the layout of the house.

224 Shortly after Lai was remanded, both Cox and Sadler came to see him. He claimed that he had numerous dealings with them over the following months. They wanted information about drug dealers, which he supplied. As a result, he was granted bail. Both Cox and Sadler were present at his bail application.

225 Lai said that after his release, the two officers picked him up from outside the Magistrates' Court and took him to the St Kilda Road Police Complex. They questioned him about various drug dealers. He provided them with additional information.

226 Importantly, Lai said that he told both Cox and Sadler that he was in a position to obtain drugs from a man whom he named as 'Dennis Le'. This was in fact Le. Lai provided Cox and Sadler with Le's telephone number and with information about his car.

227 According to Lai, Cox and Sadler asked him to contact 'Dennis Le' and arrange a small deal. The purpose was to secure Le's trust. In the following days, they contacted Lai on a number of occasions, and repeatedly asked him to arrange a buy from his source. Lai eventually managed to secure a small sample which cost him $250. He provided that sample to Cox and Sadler and was reimbursed by them. They then told him to arrange a deal of several ounces, and to introduce an undercover police officer to his source as his friend. Lai agreed to do so.

228 Lai next arranged to purchase one ounce of heroin from Le for about $5,000. He organised for that purchase over the telephone, in the presence of Cox and Sadler. They then arranged to meet him near Parliament House. They later drove him to the Park Hyatt Hotel in East Melbourne. Lai was introduced to the undercover police officer who later met Le and dealt with him. Lai said that he subsequently contacted Le to arrange a larger deal. When that deal took place, Lai was not present, though he understood that the purchase had gone through.

229 At a later time, according to Lai, Cox and Sadler accompanied him to Goldfingers, a Melbourne strip club. They identified some of the girls there as drug users, and told him that he could make money selling drugs to those girls. On one occasion, Cox and Sadler visited him at his flat. They entered his bedroom. There were about five grams of heroin clearly visible on his bedside table, but they did nothing about that.

230 Lai claimed that, throughout this entire period, he was providing both Cox and Sadler with information about drug dealers. They questioned him about how much he was paying for his own drugs, and asked him how much he could sell. They offered to provide him with heroin at a lower price. According to Lai, he was paying what equated to about $3,500 per ounce at the time. Either Cox or Sadler told him that they could supply him an ounce for $2,500. They were aware that he could not fund purchases of that order, so they suggested to him that he should sell drugs in order to be able to do so. The proposal was that he would buy one ounce of heroin for $2,500 from them, and that he would pay them a percentage of any profit he made. His recollection was that the figure they suggested was about 30 per cent.

231 Lai said that the proposal that he sell heroin on behalf of Cox and Sadler was first raised with him at the time of his visit to Goldfingers. They offered to provide him with amounts of up to twelve and a half ounces (known as a 'cake'). Such a quantity would, at the time, have been worth about $60,000.

232 Lai claimed that at about the same time, Cox and Sadler asked him to help them arrest dealers who were trafficking on a similar scale. In return, they would give him a small amount of any heroin seized in the arrests. That heroin would be his to sell, although he would have to share the proceeds with them. One or two days later, they supplied him with about a gram of heroin. They proposed that he sell it. However, he smoked it instead. About a week later, they complained to him that he was not supplying them with enough information. On another occasion, they drove him to the St Kilda Road Police Complex where he was introduced to a police officer whom they described as their superior. That officer gave him the $1,000 in cash to which we referred earlier.[113] As mentioned above, Lai complained that Cox and Sadler took the money from him, and kept it for themselves.

233 Lai said that he last spoke to Cox and Sadler about a week or so after they took the money from him. They called him late at night, and arranged to meet him outside his flat. They drove him towards the eastern suburbs. They asked him what he thought about their business proposal. He told them that he could not go ahead with it. He said that there were rumours that he had informed on Le, and that it would be very difficult for him to deal in drugs in those circumstances.

234 Lai claimed that they then threatened to have his bail revoked. One of them pointed out that, as he had no family in Melbourne, he could 'pretty much disappear'. He claimed that they assaulted him. He said that he then told them that he needed time to think. A short time later, he changed address and was subsequently arrested.

235 Under cross-examination, Lai agreed that he had numerous prior convictions, including three for blackmail and four for armed robbery. He agreed that when he first met Cox and Sadler, he was facing charges of having breached an intensive correction order. He was later imprisoned in relation to that matter. He also agreed that he had convictions for possession of a prescribed weapon, and for going equipped to steal. As well, he had been convicted of trafficking amphetamines.

236 Lai acknowledged that in May 1998, he had been initiated into the Triads in a ceremony in Sydney. He agreed that thereafter he had dealt in hundreds of thousands of dollars worth of heroin. He agreed that he had friends connected to organised crime in Hong Kong. He accepted that he had purchased heroin in cake lots on a number of occasions. He also acknowledged that he had seen, in a Chinese restaurant he frequented, a fish tank which contained more than 300 kilograms of heroin.

237 Lai accepted that, when Cox and Sadler first spoke to him in custody, they promised to help him if he provided them with information. He agreed that he had expected them to help him when he went to court in July 1999. However, neither of them had turned up. He also agreed that Le's associates had apparently discovered that he was an informer, and thereafter no one would have anything to do with him.

238 We consider the evidence of Lai to have been both relevant and admissible. There was a clear nexus between him and the man he introduced as his source, Le. The offers made to both men were sufficiently similar to warrant Lai's evidence being received in proof of the overall conspiracy alleged or, failing that, as necessary background and context to the conspiracy involving Le.

239 The judge provided a cogent explanation for admitting Lai's evidence. He considered, but rejected, an application to exclude that evidence in the exercise of his discretion. Plainly, the evidence had significant probative value. There is nothing to suggest that the probative value was outweighed by its likely prejudicial consequences. No error of any kind has been demonstrated in relation to that exercise of discretion.

240 Finally, to the extent that his Honour treated Lai's evidence as circumstantial (and directed the jury accordingly), the jury were directed properly, and in accordance with law. It is noteworthy that no exception was taken to his Honour's charge in that regard.

The learned trial judge erred by failing to discharge the jury upon applications having been made to that effect subsequent to the verdict of 'guilty' that was returned in respect of the co-accused, Glenn Sadler, on the morning of 26 September 2006.

242 The circumstances were as follows. On 26 September 2006, the judge was informed that the jury had reached a verdict in relation to Sadler, but not in relation to Cox. By then, the jury had been deliberating for 12 and a half days. After discussing the matter with counsel, his Honour said that he planned to take the jury's verdict in relation to Sadler, and tell them to continue their deliberations on Cox. He said that he did not intend, at that stage, to inform the jury as to the possibility of a majority verdict in relation to Cox. He added that he did not consider that it was necessary to give a Black direction[114] at that time. However, he indicated that he would give the jury some 'gentle encouragement', suggesting to them that they continue to listen calmly and rationally to each other, to keep an open mind, but not to abandon a firmly and honestly held view. Counsel for Cox did not disagree with that course. Nor did he submit any alternative plan.

243 The jury then delivered its verdict in relation to Sadler. When asked by his Honour how their deliberations were proceeding in relation to Cox, the jury foreman said that they were 'making slow progress'. The judge then spoke to them in the manner earlier foreshadowed. At 10.40 am, the jury retired to continue their deliberations.

244 At 2.57 pm that afternoon, the Court reconvened at the request of counsel for Cox. At that stage, an application was made to have the jury discharged. Counsel told his Honour that, on his reckoning, the jury had been deliberating for approximately 90 hours, spread out over 14 days. He noted that they had been sequestered since 11 September which, he submitted, was oppressive. Counsel submitted that, throughout the period that the jury had been deliberating, there had been considerable publicity relating to apparently unlawful conduct by members of the Victoria Police. He highlighted the foreman's comment that the jury's progress was 'slow'.

A guilty verdict now having been returned in the trial of Mr Sadler, we are, on behalf of Mr Cox, concerned with the already long period of deliberations, coupled with the clear indication that now slow progress is only being made in the case of Mr Cox, gives rise to the real potential that the proper and fair consideration of his case, a case which in our submission is one very different and indeed considerably weaker than the case of Mr Sadler, may now be threatened simply in consequence of the fact that time has already elapsed in a significant extent and there is in prospect the likelihood that further time will considerably elapse before some result may come out at the end of the process.

Counsel submitted that, while a period of 10 days' deliberation might be reasonable for a case as complex as this, the jury had already been out for significantly longer than that. His concern now was that any verdict might be the result of attrition, and that contrary views conscientiously held might be jettisoned in the face of the prospect of unending deliberation. Counsel indicated that his primary submission was that the jury should be discharged. If that submission were to be rejected, he asked that consideration be given 'sooner rather than later' to the jury being permitted to return a majority verdict.

246 After hearing from the Crown, his Honour ruled against the application to discharge the jury but resolved to direct them that, so far as Cox was concerned, they could return a majority verdict. His Honour said that it came as no surprise that the jury had been deliberating for as long as they had. He noted that the case had extended over a lengthy period, and that the jury had heard detailed final addresses from all three counsel. The jury, he observed, had made notes and asked questions that had reflected the 'careful, considered, and detailed approach' they had taken throughout the case.

247 His Honour said he appreciated that 'time does tire' and that this could have an effect upon a jury. He had, however, impressed on the jury at every opportunity that they could take breaks, and should not overstrain themselves. He said that his tipstaff had been assiduous in making sure that they followed this advice. The judge said that the indication given by the foreman that the jury was moving towards a verdict in relation to Cox suggested that they were 'not under excessive strain', and were making the type of progress that he would expect them to make. He concluded:

In those circumstances it does not seem to me to be right to be discharging this jury without verdict. I do not sense any oppression or any attrition of the type that is suggested by Mr Young.

248 At 3.15 pm, his Honour gave the jury the majority verdict direction that he had foreshadowed.[115] He then asked the jury: 'How are you doing, you are not getting too tired today?' The foreman replied: 'We are getting a little bit tired, your Honour.' His Honour then said:

Yes. I think it is important, firstly, to have breaks and if you get to a stage where you feel you are getting too tired to deliberate today, it has been a long day, it might be a good idea to pull stumps early today. Would you prefer to stop now or would you like to go back and discuss that with the jury?

The foreman answered: 'I think the jury has just about had enough, your Honour.' The jury were sent away for the evening.

249 The following day, after another morning produced no verdict and no questions from the jury, his Honour asked them in the early afternoon what progress they were making towards reaching a verdict. The foreman indicated that the jury felt that they were making progress, and they again retired.

250 At 4.45 pm that day, counsel for Cox made a further application for the jury's discharge. He said that, by that stage, the jury had been deliberating for approximately 100 hours, and had had a full day to return a majority verdict. Counsel said that he had been instructed that some jurors were showing signs of 'visible distress'.

251 The judge replied that, when lunch breaks were taken into account, the jury had in fact been deliberating 'just shy of 80 hours'. He said that, while one juror had looked a bit upset the previous evening, that needed to be understood in the context of a jury that had just delivered a verdict. He said that he had no indication from his tipstaff that any jurors were distressed, and that he had not discerned any signs of distress earlier on when he had asked them how they were progressing. He noted that the foreman had said that they were making progress, and he noted also that there had been no dissent from within the jury regarding that statement.

252 The following morning, the jury returned a unanimous verdict of 'guilty' in relation to Cox. Before this Court, it was submitted that the guilty verdict had taken some 95 hours of formal deliberations - 15 hours longer than that in respect of Sadler. It was submitted that, when confronted with the jury's guilty verdict in relation to Sadler, his Honour had 'resisted' inviting the return of a majority verdict in relation to Cox. As we have seen, that is not in fact what occurred.

253 Counsel for Cox acknowledged that he had not made any application for the jury's discharge for a 'considerable time'. He further acknowledged that, with long trials involving complex issues of fact and law, it was reasonable to expect that a conscientious jury would take time to deliver their verdict. He submitted, however, that the duration of the deliberations, the delivery of the verdict in relation to Sadler and the comment by the foreman that the jury were making 'slow progress' in relation to Cox, all provided a strong impetus to discharge the jury once the Sadler verdict was in. Put simply, it was submitted that the jury had been permitted to deliberate for an inordinate period of time, and that one could not be confident that a verdict according to the evidence had been finally returned. The case against Cox, it was contended, was a slender one and, therefore, a prime candidate for ultimate error.

254 The question whether a jury should be discharged after lengthy deliberation is, of course, a matter for the trial judge to determine in the exercise of his or her discretion. The test is whether a high degree of necessity has been shown.[116] No inflexible rule can be adopted in that regard.

255 When a trial judge has refused an application to discharge the jury and the accused has been convicted, the appeal is not against the failure to discharge the jury but against the conviction.[117] Thus, in Maric v The Queen ('Maric'),[118] Gibbs ACJ said:

However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury, and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally ...[119]

256 In R v Gallagher ('Gallagher'),[120] the Full Court (Young CJ, Kaye and Gray JJ) was concerned with a complaint about a failure to discharge a jury. The Court cited Maric and said:

Accordingly, the applicant must show that there has been a miscarriage of justice.

In the present circumstances, the question to be asked can be expressed as follows: did the learned Judge's refusal of the repeated applications for the discharge of the jury place the jury under undue pressure and thus create an unacceptable risk of the jury reaching a non-consensual verdict? By an "unacceptable risk" we mean a risk of a degree which this Court regards as unacceptable. By a "non-consensual verdict" we mean a verdict which is not the result of a true agreement among the jurors. If the above criteria are satisfied, it follows that a miscarriage of justice has occurred in the relevant sense, or, to express it differently, that the judicial discretion has miscarried.

257 The fact that the jury in the present case had already delivered their verdict in relation to Sadler is in no way dispositive of this ground of appeal. It is well established that if, during the trial of more than one accused, an accused changes his or her plea to guilty, the discharge of the jury is generally not warranted in relation to the other, even in a conspiracy case.[121] (Indeed, in such circumstances, the jury are still required to bring in a verdict in relation to the accused who has changed his or her plea, because that accused has been put in charge of the jury.[122])

258 Approaching the matter in accordance with the decision in Gallagher, we are not persuaded that any miscarriage of justice occurred. It is clear that the judge was carefully monitoring the jury for signs of distress and was guided - as he was entitled to be - by the uncontradicted advice of the foreman from time to time. The fact that a unanimous verdict was ultimately delivered, notwithstanding that the judge had some hours earlier invited a majority verdict, seems to us to foreclose the possibility that the jury reached a 'non-consensual verdict'.

V THE BROWNE V DUNN DIRECTION (FERGUSON)

259 Ground 7 of Ferguson's notice of appeal is in the following terms:

The learned trial judge erred in proceeding to provide a Browne v Dunn type direction in respect to the suggested failure to cross-examine the police witnesses as to a failure to properly investigate the possibility that the applicant's father was a source of the cash payments and cash deposits relied upon as evidence of betterment.

260 In answer to Curtin's financial betterment evidence, Ferguson gave evidence that most of the supposedly 'unsourced' cash had actually come from his father, Norman Ferguson. The applicant was cross-examined as to his failure to produce records in support of that claim. His counsel objected to that cross-examination, submitting that it effectively reversed the onus of proof.

261 In final address, Ferguson's counsel sought to remove the sting from the prosecutor's questioning by suggesting to the jury that the fault lay with the police for a lack of material regarding monies advanced to Ferguson by his father. Counsel asserted that the police had not properly investigated that issue. Counsel reminded the jury that Simon Foster, a police officer engaged with CEJA, had acknowledged that, although he had examined the financial records of two members of the Ferguson family, he had done nothing with regard to the records pertaining to Ferguson's father; and that when the police had made inquiries of the Ferguson family and Ferguson's father refused to cooperate, they took no further steps to obtain his financial statements. Finally, counsel suggested to the jury that the police were well aware of Ferguson's father's financial involvement with his son. For example, he said, there had been evidence from a bank manager that Ferguson's father had repaid a number of loans on behalf of his son, and that his son had lent him an amount of $100,000.

262 These submissions during final address, and others of a similar nature made by counsel for Mrs Ferguson, provoked a heated controversy. This led ultimately to the judge giving a Browne v Dunn direction,[123] to which counsel for Ferguson strenuously objected. The judge ruled that a number of the criticisms which Ferguson's counsel had levelled at various witnesses in his closing address had not been put to any of those witnesses. In particular, it had not been put to any of the CEJA investigators that they were aware that Ferguson's father was, or might have been, the source of a good deal of the cash which Curtin fixed upon in forming his opinion as to betterment; nor that they should have considered that possibility; nor that they had failed in their duty to do so.

263 The judge was firm in his view that the cross-examination of these witnesses had not given proper notice to the Crown that their evidence would be subjected to such criticisms. His Honour said:

In the course of submissions, I expressed the view that there had been a flagrant breach of the principles of Browne v Dunn. In the context of the issues which have been at large in this case throughout the trial, I consider that that description is apt ...

264 His Honour gave five reasons as justifying the proposed Browne v Dunn direction. In summary, they were:

• fairness;[124]
• the submission involved an attack upon the integrity of the investigators;
• the matters which should have been put, but were not, were simple and direct. No adequate explanation had been given for the failure to put those matters;
• counsel for Mrs Ferguson had been put on notice of his Honour's view that there had been a breach of the rule in Browne v Dunn by counsel for Ferguson. Notwithstanding that fact, he had not only repeated the arguments advanced on behalf of Ferguson, but had elaborated upon them; and
• counsel for Ferguson had also 'to some extent' been put on notice by the Crown, well before his final address, that if he intended to allege a failure on the part of the police to carry out their investigation properly, that matter should be put in cross-examination.

The concept of fairness cuts both ways in a criminal trial. In my view, it would, in the context of this trial, be substantially unfair to the Crown not to remind the jury of the principles in Browne v Dunn in relation to the matters which have been raised in argument by counsel for the accused.

The judge said that the comment and direction which he intended to give was:

particularly restrained and, indeed, somewhat neutral in effect as I do bear in mind the undesirability of a trial judge making a comment adverse to an accused's case unless the circumstances necessitate it. The comment which I intend to make is the minimum which I think I can make as a matter of fairness to both parties.

266 In his charge to the jury, his Honour characterised Ferguson's position as being that:

• the police had information from which they knew, or ought to have known, that Ferguson's father might have been the source of much of the cash that led to the alleged betterment;
• the investigators ought to have properly investigated whether Ferguson's father might have been the source of this money, but had not done so; and
• the Crown had failed to exclude a reasonable hypothesis consistent with innocence, namely, that Ferguson's father might have been the source of much of this money.

267 His Honour reminded the jury that, as the finders of fact, they had to consider the submission put forward by Ferguson's counsel as set out above. He went on:

But in this context - and this is why I really raise this matter - in this context it is relevant for you as the jury to consider whether those propositions that have been made to you in final address by counsel for each accused were the subject of any cross-examination by defence counsel of Crown witnesses and, if so, for you to consider to what extent the issue was raised in cross-examination and to consider what responses, if any, were elicited from the Crown witness.

268 The judge then told the jury about what he described as the 'rule of practice'[125] that:

where counsel in final address intends to advance a proposition or a conclusion of fact, counsel should first put that proposition or conclusion of fact to a witness called for the other side who might be in a position to confirm or deny it, or should at least give to the other side fair and reasonable notice of counsel's intention to advance that proposition so that the other side can lead evidence in response to it. That rule is nothing more than common sense, you might think. It is really a matter of fairness, as I outlined to you. It means that things are put in final address which the other side have had a chance to address in evidence. It is also a useful rule because it enables - if matters are to be alleged in final address - it enables you as a jury to see how they have been put in cross-examination to witnesses and to assess the witnesses' responses. With that in mind, I will take you to parts of the transcript and it is for you to assess how or whether this matter was ever raised to the extent to which it is and the consequence of the raising of it ...

269 His Honour took the jury to the relevant parts of the evidence that had been given by Detective Sergeant Michael O'Neill, one of the original investigators, and Detective Senior Sergeant Foster. He then told the jury:

It is a matter for you - a couple of matters are matters for you, but one is, firstly, whether you consider the arguments that were put to you in final address were put in that cross-examination in such a way as to give the Crown witnesses and the Crown fair notice of the arguments that were advanced and the propositions underlying them. My comment to you, and this is only a comment so it does not bind you, is that it certainly was not put in direct terms or in the square type of terms that you might have expected. In other words, counsel didn't put to a witness such as Mr Forster or Mr Curtin that CEJA had information in its possession by which it knew or should have known that there was a possibility that Norman Ferguson was the source of a significant amount of the betterment and cash transactions relied on by the Crown. It was not put that CEJA could have, and should have, investigated that matter further and that they failed in their obligation to do so. Now it is a matter for you. You may consider that the matters I have taken you to were sufficient to put the Crown on notice and that is a matter for you, not for me, you make that judgment. But if you consider that the matter was not fairly put in a way which would have given the Crown an opportunity to respond, either by calling witnesses or re-examining witnesses, then you can take that into account of course in weighing the argument made to you in final address by counsel for both accused. Because in that situation if you think the matter was not fairly raised with Crown witnesses in a way that put the Crown on notice, you would have an argument which the Crown has not had the opportunity to respond to. Now, that just goes to a matter of weight of the argument.

270 Before this Court, it was submitted that his Honour ought not to have given a Browne v Dunn direction. It was contended that there had been no breach of the rule because 'the issue had been litigated to some extent'.[126] It was further submitted that there was a need for 'caution and restraint' before giving this type of direction.[127] Finally, it was submitted, the comments made by Ferguson's counsel in his closing address had been 'more limited' than those by counsel for Mrs Ferguson. In those circumstances, the remedy chosen by his Honour to deal with any unfairness to the Crown had been disproportionate to any prejudice occasioned by what was said.

271 It was next submitted that his Honour's three-pronged summary of the implicit effect of the final address, as outlined above, might have led the jury to believe that their ultimate consideration of the 'hypothesis consistent with innocence' should be influenced by their conclusion as to whether arguments put by counsel had proceeded without proper questions being put to witnesses in advance. It was submitted that this was unfair. Ferguson's explanation regarding his father's contribution to Ferguson's assets was a critical aspect of his defence. He had been denied the benefit of a submission properly open to him.

272 The Crown noted, in response, that Ferguson's father had not been called as a defence witness in the trial. The Crown also noted that there had been extensive discussion of that matter and the breach of the rule in Browne v Dunn, which led to a series of rulings by his Honour. Finally, the Crown submitted that his Honour's directions to the jury were appropriate, and had not occasioned any miscarriage of justice.

273 In our view, the judge correctly concluded that counsel for Ferguson had failed to comply with the rule in Browne v Dunn. The central object of the rule is to ensure a fair trial.[128] As with the rules governing pleadings in a civil case,[129] and the rules which constrain the raising of new points on appeal,[130] this rule exists to ensure procedural fairness. It is a fundamental requirement of procedural fairness that each party give to the other reasonable notice of the case which it will have to meet, so that the other party can decide whether additional evidence should be called to meet that case. On the betterment issue, the Crown gave proper notice of how its case would be put, but counsel for Ferguson did not give proper notice of how he would meet that case.

274 It was clear from the beginning of the trial, and remained so throughout, that the issue of financial betterment was of central importance to the Crown case. It was inevitable that the defence would have to meet that issue. It was perfectly legitimate for Ferguson to invite the jury to conclude that they should discount much of the evidence relating to betterment, on the basis that he had received a good deal of money from his father. But counsel for Ferguson had gone much further than this. He had invited the jury to conclude that the police had not carried out any proper inquiries into the financial dealings between the two men.

275 Counsel had not given the investigators any opportunity, in the course of their evidence, to meet that allegation. It was necessary to put this matter to them so that a proper foundation could be laid for the submission that was ultimately made in the closing address.[131] Otherwise, the jury could be misled into thinking that the investigation had been shoddy when, in truth, that may not have been the case.

276 What is necessary in any given case to ensure procedural fairness - or to remedy a breach of its requirements - will depend on the circumstances.[132] It has been said, moreover, that 'the notion of fairness ... may have a somewhat different practical content in a criminal trial.'[133] And of course particular care will be required when (as here) it is the prosecution, rather than the defence, which has suffered the unfairness. The trial judge will wish to avoid adopting a remedy for unfairness to the prosecution which might itself work unfairness against the accused. That is, of course, precisely what is said to have occurred here.

277 There are various ways in which a breach of procedural fairness can be remedied.[134] The judge may draw the attention of counsel to the need to put matters fairly during the course of cross-examination. Sometimes, the issue does not arise until later in the trial as, for example, when it is sought to call evidence contradicting an earlier witness or, as in the present case, when it is sought to address the jury on a basis that ought to have been put in cross-examination. Sometimes, the interests of justice will be served by having a witness recalled for further cross-examination. In some cases, the only way in which the matter can be dealt with is by a direction to the jury in strong terms that it was not open to counsel, in the course of his or her final address, to advance a particular submission, while leaving it to the jury, in the final analysis to resolve the issue of fact concerned.

278 The course adopted by his Honour in the present case was an intermediate one. He invited the jury, when reflecting upon the defence submission that the police had not carried out a proper investigation, to consider the fact that that suggestion had not been put to any of the investigating officers. He did not comment strongly upon the failure to comply with the rule, as he might have done. In our view, the course adopted was appropriate to secure the object of remedying the unfairness, without making the trial unfair for Ferguson.

279 We do not accept that the jury may have been misled into thinking that, because the cross-examination was deficient, the issue of betterment had to be decided against Ferguson. When read as a whole, his Honour's charge made it clear that the matter was left entirely to the jury for their consideration, just as it ought to have been.

280 We would reject ground 7 of Ferguson's notice of appeal.

281 Counsel for Ferguson sought, and was granted, leave to amend his full statement of grounds by adding ground 7A:

The learned trial judge erred in his directions to the jury on the issue of alleged discrepancies between the applicant's evidence and matters that had been put by his counsel.

282 In cross-examination, Ferguson's credit was attacked by the prosecutor, who highlighted what were said to be inconsistencies between Ferguson's evidence and questions asked of prosecution witnesses. The inconsistencies were said to relate to:

• the source of $100,000 deposited in the trust account of Peter Cash, a solicitor;
• whether a safe house had been set up by police in order to target Le's uncle, Ky Quoc Pham (who was a high-level drug dealer); and
• the extent of Ferguson's alleged trade in alcohol with Le.

Ferguson was also cross-examined regarding an alleged discrepancy between his evidence and a submission made by his counsel, in the jury's absence, as to how a swimming pool at his house had been funded.

283 Under cross-examination, Ferguson was asked to explain these discrepancies. He was accused of recent invention. His counsel dealt with some of these matters in re-examination. The prosecutor referred to them in his final address to the jury.

284 In his charge, the judge set out the matters which the Crown contended exposed material differences between Ferguson's evidence and questions asked by his counsel. He noted how the prosecutor had suggested to the jury that they should use those 'differences or inconsistencies', if they found them to be so, in weighing Ferguson's credibility. The judge continued:

When you consider this contention made by the Crown and indeed the matters put by the Crown to Mr Ferguson in cross-examination, you first need to consider whether there has been a relevant and significant discrepancy between what was put on behalf of Ian Ferguson in cross-examination and what was stated by Ian Ferguson in his evidence ...

If you do find that there is a material significant discrepancy between what [Ferguson's counsel] put in cross-examination and what Ian Ferguson said in his evidence, then you consider whether that discrepancy adversely affects the credit of Ian Ferguson, particularly in relation to the issue in which you find that discrepancy. But you bear in mind, if you find such a discrepancy, that such a discrepancy between questions put in cross-examination between the evidence of an accused person may occur for a number of quite innocent reasons. For example, the discrepancy might arise out of error, out of misunderstanding by counsel, out of difficulty communicating with the client, and it can arise out of counsel's own particular style of cross-examining ...

In this particular case you, of course, need to bear in mind that this has been a very long case with a lot of detailed evidence, which has no doubt involved a very considerable burden on counsel. So you need to bear in mind in this aspect of the case the potential for counsel to have erred or made a mistake in not accurately reflecting his client's instructions when he has been cross-examining.

Of course, if a discrepancy occurs on an issue which is important in the case, then you might be entitled to expect that counsel would be careful and particular to put his or her instructions accurately.

285 Before this Court, it was submitted that both as a matter of general principle and in the particular circumstances of this case, any direction of this kind needed to be framed with special care.[135] In the context of a long and complex trial, so it was said, the final paragraph of his Honour's direction could have had a 'telling' effect on Ferguson's credit in the eyes of the jury.

286 Earlier, the judge had explained how any discrepancies might be viewed as being the product of 'a misunderstanding by counsel' of his client's instructions. Indeed, that was the position taken by Ferguson's counsel before his Honour. It was submitted that the final paragraph of the direction would necessarily have cast doubt upon that explanation, and put a more sinister gloss upon the discrepancies.

287 In our view, this argument must be rejected. His Honour's observation - that questioning on crucial issues was more likely to be based on instructions correctly understood - was a comment and would have been so understood by the jury. It did no more than suggest that discrepancies on important issues required close consideration, as they plainly did. The comment did not give rise to a miscarriage of justice.

288 Ground 7A must therefore fail.[136]

VII ADMISSIBILITY OF STATEMENTS BY COX AND SADLER

289 Ground 10 of the Sadler application and ground 11 of the Cox application are in the same terms. Each contends that the trial judge erred in admitting statements made by the applicants concerning the arrest of Cheung and Agbayani at Burwood on 2 August 1999.[137] The relevant facts of the arrest are outlined above.[138]

290 As mentioned above, Cox and Sadler participated in the arrest. In cross-examination of both Le and Agbayani, counsel for Cox and counsel for Sadler suggested that Le had taken the missing ounce or ounces of heroin. When Agbayani - who was a Crown witness - gave evidence, he gave an account of the transaction which differed from that given by Le. Le said that, when he got into the car, Agbayani showed him where the heroin was, opened the bag, displayed the contents and told him how to distinguish between average and better parcels of heroin. Agbayani, on the other hand, said that when he entered the car, Cheung telephoned and told Le where the bag containing the heroin was to be found. When Le brought out the bag, Agbayani said he realised a drug transaction was in progress. He said he panicked, got out of the car, and opened the bonnet.

291 The prosecutor sought to tender statements made by Cox and Sadler, which were included in the police brief against Agbayani and Cheung. Part of the statement by Cox was as follows:

At 9.02 pm the Ford Festiva driven by Cheung re-entered the car park from Blackburn Road parking in the eastern end of the car park again and followed by a 1980s model white two-door hatchback sports car, registration NTD-400, that had been identified moments earlier in Blackburn Road when Cheung put a package in the rear of the car. This vehicle now identified as a Mitsubishi coupé then parked in the western end of the car park and I observed an Asian male who I now know to be Enrique Uanuane Agbayani in the driver's seat. Agbayani then alighted from this vehicle and opened the bonnet of the Mitsubishi coupé removing the dip-stick. Agbayani stood at the front of the Mitsubishi coupé frequently looking around the car park before returning to the driver's seat. A short time later I observed an Asian male alight from the passenger seat of the Ford Festiva and walk to the Mitsubishi coupé where he seated himself in the front passenger seat. Agbayani then handed this male a brown paper bag where the Asian male looked at the contents before handing same back to Agbayani. The Asian male then alighted from the Mitsubishi coupé and walked towards the shops.

The statement by Sadler was to the same effect, as was a later report by Cox.

292 The prosecutor contended that the statements were admissions that Le did not have an opportunity to steal the heroin since, according to the statements, Le was never alone in the car. Counsel for Cox resisted the tender. He accepted that the statements by Cox were capable of constituting an admission, but contended that the trial judge should rule against their admissibility on the ground that their probative value was outweighed by their prejudicial effect. Counsel for Sadler contended that the statement by him was not an admission Alternatively, it should be ruled inadmissible in the exercise of discretion.

293 The trial judge ruled that the statements were admissible. His Honour held that the statements were capable of amounting to admissions as statements relating to a fact in issue. The issue was whether Le had appropriated some of the heroin. The statements related to that issue because they dealt with the opportunity which Le had to appropriate heroin unobserved by Agbayani. The fact that the statements were inconsistent with the evidence of Agbayani, who was also a Crown witness, did not constitute a basis for rejecting the tender. A party could call witnesses who contradicted each other.

294 As to the discretion to exclude the statements, defence counsel submitted to the trial judge that the applicants could not have made the detailed observations recounted in the statements, and that the jury would accord excessive weight to the statements because they were signed as true and correct with the acknowledgement in each case that the maker of the statement was liable to the penalties for perjury if the statement were false. His Honour observed that, while he had reservations as to whether the applicants could have seen Agbayani hand the bag to Le, there was nothing in the statements - or other evidence - rendering the statements of so little probative weight that they should be excluded. The assessment of the weight to be given to the statements was a matter for the jury.

295 In this Court, counsel for Sadler again submitted that the statement by his client was not an admission. It 'lacked sufficient immediate connection to a fact in issue'. First, Sadler did not unequivocally state that Agbayani never got out of the car. Secondly, even if Le was not left alone in the car, that did not rule out the possibility that Le stole some of the heroin.

296 This submission must be rejected. In order to be admissible as an admission, a statement need not constitute irrefutable proof of the Crown's position in relation to an issue. It is sufficient that the evidence relates to an issue and is evidence contrary to the interests of the maker of the statement. Sadler's statement was adverse to the case which he advanced, namely, that Le stole the missing heroin. The statement was capable of constituting an admission. Whether or not it did amount to an admission was a matter for the jury.

297 In arguing in this Court that the statements should have been excluded in the exercise of the trial judge's discretion, counsel for both Sadler and Cox submitted that the observations recorded in the statements were unreliable, because first, the statements failed to identify the place from which the observations were made, and secondly, the observations were of movements in a darkened car at night. It was further submitted that the statements were inadmissible because they were advanced for the purpose of undermining the evidence of Agbayani, a Crown witness; the makers of the statements (Cox and Sadler) could not be cross-examined; and each statement derived unwarranted authority from the acknowledgement by its maker that he was liable to penalties for perjury if the statements were false.

298 In our opinion, no error has been demonstrated in the trial judge's exercise of his discretion in refusing to reject the tenders. The attacks that could be made upon the reliability of the observations recorded in the statements by no means robbed the statements of probative value. On the other hand, the fact that the maker of each statement had acknowledged that a false statement might attract liability for perjury did not neutralise the criticisms that could be made of the reliability of the observations. The fact that the statements were inconsistent with the evidence of Agbayani was simply a function of the obligation of the Crown to lead all relevant evidence. Resolution of that inconsistency was, of course, a matter for the jury.

299 Finally, the fact that the statements could not be cross-examined on followed necessarily from the fact that they were made by those against whom they were sought to be admitted. Axiomatically, a party said to have made an admission against interest has the task - often a difficult one - of demonstrating why the apparent admission should be discounted. That task is likely to be the more difficult when (as here) the putative admission is made in a sworn statement.

300 The written submission for Cox made a sustained attack on what was said to be 'the ultimate' misuse of the statements by the prosecutor in his final address to the jury. According to the submission, the prosecutor 'illogically and quite prejudicially claimed that [the statements] conclusively established the guilt of both men, irrespective of how they could be interpreted'. The admission of the statements had enabled the prosecutor 'to irrationally urge incriminating inferences far in excess of [the] slight value [of the statements]'. The prosecutor was criticised for adopting the position that the statements demonstrated either that the applicants had been prepared to perjure themselves or else that their observations bolstered the evidence of Le.

301 We do not accept this submission. The statements by the prosecutor do illustrate that this evidence was capable of working significant prejudice. But that falls short of demonstrating error in the trial judge's ruling. The shortcomings in the Crown's arguments to the jury were debated in this Court. They could equally have been pointed out to the jury by counsel for the applicants in their final addresses, which followed the final address of the prosecutor.

VIII REVELATION OF THE FERGUSON TRIAL[139]

302 In the course of counsel's opening addresses at the Cox and Sadler trial, it became obvious that reference would be made to evidence given by witnesses in the earlier trial of Ferguson. The prosecutor and counsel for Sadler agreed that the judge should tell the jury that Ferguson had been tried separately, but that they were not to speculate as to the outcome of the trial. For his part, counsel for Cox proposed that reference be made only to evidence having been given previously, without revealing that it had been given at Ferguson's trial. The trial judge was minded to take the latter course but became concerned during the opening that the jury would speculate about what had happened to Ferguson. Before any evidence was led, and again in his charge, the trial judge told the jury that Ferguson had been tried separately, that his trial was irrelevant, and that they were not to speculate about the result of that trial.

303 Counsel for both applicants contended in this Court that the jury should not have been told that Ferguson had already been tried. The combination of Ferguson's trial and the Crown's continued reliance upon the evidence given by Le buttressed Le's credibility, so it was said. That is, it would have been apparent to the jury that Le had given evidence in the earlier trial, and they would have viewed his being used in a second trial as a 'resounding endorsement' of his 'past performance'.

304 As a separate point, it was submitted that at various points in his final address the prosecutor implied that Ferguson had been convicted. For example, he said:

When you look at this, the sense you get, do you not, is that ultimately Mr Ferguson in particular just had this sense of invulnerability. It gets back to the fact that "It is just my word against some grubby drug dealer. I am a renowned policeman. I am a member of one of the elite squads. Who is going to believe him against me?" and you are safe; you are never going to get convicted of drug dealing unless somebody comes along and joins the dots. Fortunately for the community and unfortunately for Mr Ferguson and Mr Sadler and Mr Cox, Duy Le is a man who has really here done no more than join the dots together, except that nobody knew the dots were there until Duy Le gave his account and they knew where to look.

305 The trial judge faced a difficult problem. Knowing that Le had given evidence at Ferguson's trial might well have led the jury to think that the Crown viewed Le as having performed satisfactorily as a witness. On the other hand, it was inevitable that the jury would learn that Le had given evidence for the Crown on an earlier occasion. Moreover, it was to be expected that the jury would wonder why Ferguson was not being tried with Cox and Sadler and would speculate as to his fate.

306 In our view, his Honour was correct to reveal that Ferguson had been tried and then to warn the jury that the result of that trial was irrelevant. The risk of impermissible speculation by the jury would have been much greater if his Honour had said nothing about the first trial, in the hope that the jury would not guess what had happened to Ferguson and would not act on that guess in determining the charges against Cox and Sadler.

307 We do not consider that the trial miscarried because the jury were told that Ferguson had been tried. Even if Le's credibility was materially enhanced by his appearance as a Crown witness at a second trial - and, like the judge, we doubt whether it was - that circumstance would have been obvious to the jury even if they had not been told that the first trial involved Ferguson.

308 As to the separate complaint, we do not think that the passage from the prosecutor's address set out above did inferentially reveal the outcome of the Ferguson trial. Nor did the other passages to which attention was drawn.

309 Grounds 1 and 18 of the application by Cox are in the following terms:

1. The learned trial judge erred in failing to order that the applicant have a separate trial from the co-accused Glenn Sadler.
2. The learned trial judge erred by failing properly to direct the jury as to the need to consider the separate trial of the applicant and, in particular, the learned judge erred by failing to direct the jury that it would have been open to the jury to convict one accused but not the other.

310 Where the Crown case is that the accused were engaged in a common enterprise, the starting point is that they should be jointly tried.[140] This prima facie position will give way, however, if a joint trial would occasion substantial prejudice of a kind not likely to be nullified by judicial direction.[141]

311 In the present case, it was common ground that the question as to whether Cox should be tried separately from Sadler turned upon whether the evidence against Cox was 'significantly different' from the evidence against Sadler. This test derives from Darby v R,[142] where the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) said:

[I]n our opinion there is much to be said for ... requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice.

312 Applying that test, the trial judge ruled that Cox should be tried separately from Ferguson, but not from Sadler. The Crown case against Ferguson included evidence of direct trafficking of heroin by Ferguson to Le; evidence of financial betterment in an amount of some $700,000; records of 300 telephone conversations between Ferguson and Le; evidence that Le and Ferguson met in Sydney; and evidence of a relationship between Ferguson and Le that went well beyond that of a relationship between police officer and informer.

313 On the other hand, the Crown case against Cox was that, although the first corrupt approach to Le was made by Cox, Cox did not supply Le with any heroin after approximately September 1999. Le only met Cox once after Cox retired from the police force in early 2000. The only other evidence of contact between Le and Cox was evidence of one telephone call. After early 2000, on the Crown case, Cox's role was that of a sleeping partner, who was paid 'tribute' by Ferguson and Sadler as a consequence of his having recruited Le.

314 The trial judge said that the Crown case against Ferguson was considerably stronger than the case against Cox. Apart from the differences between the case against Ferguson on the one hand and Cox on the other, his Honour was influenced by the consideration that, if Ferguson and Cox were tried together, the Crown had the unfair advantage of the enhancement of the credit of Le caused by the admission of evidence against Ferguson, which was not admissible against Cox.

315 The trial judge acknowledged that there were differences between the Crown case against Cox and the case against Sadler. The evidence of financial betterment against Sadler ($170,000) was significantly greater than that asserted against Cox ($30,000); there were records of 50 telephone conversations between Le and Sadler and only one telephone contact between Le and Cox; and the evidence of Tran supported the Crown case against Sadler, but not Cox. His Honour also acknowledged that the case against Sadler was stronger than that against Cox. Overall, however, he did not consider that the differences were so significant that they warranted an order for separate trials.

316 In this Court, counsel for Cox drew on certain elements of the trial judge's reasoning to seek to establish that it was not reasonably open to the judge to deny Cox a separate trial from Sadler. Counsel relied on the judge's findings that (a) a joint trial between Ferguson and Cox would cause Cox prejudice that could not be remedied by judicial direction; (b) the argument for a separate trial between Ferguson and Sadler was weaker than the argument for a separate trial between Cox and Ferguson; and (c) a jury was likely to find an illegal combination between Sadler and Ferguson before finding any such combination between Cox on the one hand and Sadler and/or Ferguson on the other hand.

317 We reject this argument. The judge's findings did not entail that there be three separate trials. His Honour was required to - and did - weigh the similarities and differences between the respective cases against the accused men, in order to determine whether the interests of justice displaced the prima facie position of joint trials. The trial judge concluded that the respective cases against Cox and Sadler were not significantly different, whereas the case against Cox was significantly different from the case against Ferguson. The assessment involves matters of fact and degree, which is characteristic of discretionary judgments.[143] His Honour's conclusions were well open to him.

318 Cox's complaint as to the trial judge's directions (ground 18) is that his Honour did not accede to a request by counsel for Cox that the jury be told that they could convict Sadler, but acquit Cox. His Honour said that the direction was unnecessary and was unfair to Sadler. We respectfully agree.

319 On several occasions in the course of his charge, the trial judge clearly directed the jury that they were to consider the case against each of the accused separately, that there were two trials being conducted at the same time. It followed - and the jury must have realised - that they could return different verdicts in respect of each applicant. It was not necessary for his Honour to make explicit reference to the possibility - necessarily implicit in what he had said - of acquitting Cox while convicting Sadler. Had he taken that course, it had the potential to prejudice Sadler's position unfairly.

320 Ground 20 of the application by Cox was as follows:

The learned trial judge erred in his directions to the jury concerning consciousness of guilt, and, in particular, the learned judge erred by leaving certain evidence as potential evidence of consciousness of guilt and by failing to give an Edwards or Zoneff direction in respect of other evidence that shared in this potential.

PARTICULARS

Evidence of the activities of the accused in November 2002 after any trafficking had ceased and after Duy Le had contacted Sadler was not open to be viewed as consciousness of guilt evidence in the manner described by the learned trial judge. Evidence such as lies told to Mr Newman and Mr Blakeley as to the whereabouts of Duy Le and evidence of falsification of documents in order to disguise these lies was evidence that ought to have attracted, at least, a direction such as that as the one contemplated in Zoneff's case. Similarly, such direction ought to have been given in light of the prosecutor's argument, inter alia, that the conspirators failed to protest at any increased wealth enjoyed by Mr Ferguson.

The same ground was advanced on behalf of Sadler (ground 18).

321 Counsel for Sadler contended that five pieces of evidence should not have been left to the jury as evidence from which it could be inferred that Sadler was conscious of his guilt of conspiracy to traffick in drugs. Counsel for Cox adopted the submissions made on behalf of Sadler.

322 The first was constituted by diary entries made by Sadler on 11 November 2002. The first entry was made at 1 pm and recorded that Sadler had liaised with Ferguson concerning the 'Giac' trial. The prosecutor contended that, while Sadler did meet Ferguson at that time, the true purpose of the meeting was to discuss the telephone conversation which Sadler had had with Le on 9 November 2002. Secondly, Sadler recorded a telephone call to Cox at 2.15 pm as 'retrial of Cheung'. The prosecutor contended that the real purpose of the telephone call was to enable Sadler to discuss with Cox Sadler's telephone conversation with Le on 9 November, and to cause Cox to contact Le. The prosecutor said that the diary entries were false and were made in an attempt to conceal the fact that Sadler had been in contact with Le on 9 November, a contact which might implicate him in the conspiracy. Counsel for Sadler submitted that the diary entries were not capable of giving rise to an inference of an admission of guilt.

323 In our opinion, if the jury considered that Sadler had made the diary entries in order to produce a false explanation for his meeting with Ferguson and his telephone conversation with Cox, they could infer that he had done so because he was concerned that, if the true facts of his meeting with Ferguson and his telephone conversation with Cox were revealed, they would implicate him as having been in an illicit and corrupt association with a drug trafficker. Whether that inference was to be drawn or not was a question for the jury.

324 The next piece of evidence was a telephone conversation between Sadler and Ferguson on 12 November 2002. The prosecutor contended that Sadler was feigning ignorance as to why the police had spoken to a friend of his and Ferguson's, when he knew well that the police had done so because they were investigating the purchase by Ferguson of Le's motor car. The prosecutor submitted that the telephone conversation was a charade in which Sadler deliberately sought to deceive any person listening by pretending ignorance as to why investigations were being undertaken by the Ethical Standards Division of the Victorian Police. Counsel for Sadler submitted that, in light of the fact that it was known that the police were investigating other unrelated matters concerning Ferguson, the inference that Sadler and Ferguson were deliberately avoiding talking about the sale of the motor car was not open.

325 At the time of the conversation, both Ferguson and Sadler knew that the police were investigating the circumstances in which Ferguson had acquired the motor car from Le, a drug trafficker who had absconded in breach of bail. In our view, the trial judge correctly ruled that it was a matter for the jury to determine whether, in that context, Sadler deliberately refrained from raising the matter. Such a conclusion could not be characterised as unreasonable or irrational.

326 The next item of evidence was a telephone conversation between Cox and Sadler on 13 November 2002. Again, the prosecutor contended that in the telephone conversation, each was falsely professing ignorance of the fact that the police were investigating the purchase by Ferguson of a motor car from Le. Counsel for the applicants proffered various innocent explanations for the applicants' ignorance of the purpose of the police investigations.

327 Once again, in our view, those were matters for the jury to evaluate. The main thrust of the argument advanced on behalf of the applicants was that the jury could only regard the conversation as incriminating if they engaged - impermissibly - in circular reasoning. The conclusion urged by the Crown depended upon accepting Le's evidence that he had told the applicants that the police were investigating the circumstances in which Ferguson had acquired his motor car. In our view, the jury was not invited to reason in a circular manner. The inference suggested by the Crown did depend upon the jury accepting that the applicants knew what the police were investigating, and in turn that knowledge depended upon acceptance of Le's evidence. But to treat the conversation as evidencing consciousness of guilt required a further element, namely, that the applicants' professed ignorance was for the purpose of distancing themselves from a co-conspirator. That critical element did not involve circular reasoning.

328 The next item of evidence was a telephone conversation on 14 November 2002, in which Sadler told his brother that he paid for a Land Cruiser by putting the money through an account held by Ferguson, and had done so because Ferguson obtained a discount as he was a farmer. The prosecutor contended that that was a lie, and was intended as an explanation for a purchase which was made entirely with the proceeds of money from trafficking in drugs. At trial, counsel for Sadler accepted that the conversation required a warning to the jury as to possible innocent explanations for the conversation. It seems to us that counsel for Sadler correctly viewed the conversation as capable of being evidence of consciousness of guilt.

329 The last item of evidence concerned the disposal by Sadler of a mobile telephone. Sadler told Cox and his mother, in separate conversations, that he had got rid of his mobile phone. Call charge records show that the last telephone call made by Sadler on the phone was a call to Le. The prosecutor contended that Sadler disposed of the phone because he knew that, if the police seized the phone, they would thereby obtain evidence of the telephone conversation between Sadler and Le, which might implicate Sadler in an illicit and a corrupt association with Le. In our opinion, the inference advanced by the prosecutor was at least open, and whether it was to be drawn was a matter for the jury. Such an inference would not have been irrational or unreasonable.

330 Each of the applicants advanced a ground in the following terms:[144]

The learned trial judge erred in respect of his directions to the jury as to the intent that would need to be established on the part of the conspirators before they could be found guilty of the charge of conspiracy, and, in particular, the learned judge erred by failing to direct the jury that before the applicant could be found guilty he must have intended to traffick in heroin in an amount that was not less than a commercial quantity and that such intent as to quantity formed an essential element of solely [sic] one agreement to traffick.

331 Section 321 of the Crimes Act 1958 (Vic) provides as follows:

(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.

(2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement -

(a) must intend that the offence the subject of the agreement be committed; and

(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

...

332 The appeal submission on behalf of Cox, which counsel for Ferguson and Sadler both adopted, was to the following effect. For Cox to be found guilty of the charged conspiracy, it must be proved that he agreed with either Sadler or Ferguson (or both) to traffick in not less than a commercial quantity of heroin. So much is clear from s 321(2)(a), which requires that both the accused and at least one other party to the agreement 'must intend that the offence the subject of the agreement be committed'. It followed, according to the submission, that Cox could not be found guilty unless he was shown to have

intended or had in mind, when the relevant agreement was formed, that the specific quantity in which they would traffick was to be not less than a commercial quantity of heroin. ... It would not have been enough ... to establish guilt that [Cox] had agreed or intended with another to commit acts of trafficking in heroin, without specifically intending to traffick in not less than a commercial quantity, where those acts agreed upon did, when taken together, constitute trafficking in not less than a commercial quantity.

333 The trial judge provided a written handout to the jury containing the essential elements of the direction on conspiracy which he gave them. The handout contained the following statement:

It is the agreement between the alleged conspirators which constitutes the crime of conspiracy, and not the pursuit of its aims. The gist of the crime of conspiracy consists of an agreement to commit a specific crime, here, to traffick heroin in a quantity not less than the commercial amount.

334 The submission for Cox accepted that, on the basis of the judge's directions, the jury would have understood that, in order to find Cox guilty, they had to find that he had agreed and intended to commit the offence of trafficking in a drug of dependence in not less than a commercial quantity. The central complaint, however, was that the judge had failed to make clear

whether an agreement and intention to commit that offence required, also, a specific intention to deal in the required quantity of the drug, or whether it was sufficient to intend simply to traffick in the drug in amounts that, as a matter of objective fact, did happen to total up to the required quantity but where the total figure was never the subject of specific intent.

It was said that this ambiguity had arisen because the judge's description of the elements of the substantive offence (of trafficking in not less than a commercial quantity) did not make clear that there needed to be an intention to traffick in that quantity, not merely an intention to traffick followed by acts of trafficking in particular amounts which, as a matter of fact, added up to the prescribed quantity.

335 In our view, this complaint is without substance. The passage from the judge's direction is clear and unambiguous. As the submission for Cox rightly conceded, the jury can have been in no doubt that proof of the charged conspiracy required, as its central element, proof that Cox (and each of the other alleged conspirators) had agreed with each of the others 'to commit a specific crime, here, to traffick heroin in a quantity not less than the commercial amount'. In his oral directions, the judge made this precise point on no fewer than 14 occasions. For example, he told the jury that the Crown

must prove beyond reasonable doubt that Cox, Sadler and Ferguson entered into an agreement to achieve the common purpose alleged by the Crown, namely, to traffick heroin in a quantity not less than 250 grams pure or 500 grams mixture ...

336 The language which his Honour used was not capable, in our view, of conveying any other meaning. In particular, it was not capable of conveying to the jury that it was sufficient for the prosecution to prove that there was an agreement to traffick heroin, provided that the prosecution could establish that the acts of trafficking which took place in fact involved quantities which, taken together, added up to more than the commercial quantity.

337 Our view - that there was no ambiguity - is confirmed by the fact that no exception was taken to these directions at the Cox and Sadler trial. Exception was taken at the Ferguson trial to certain aspects of the conspiracy directions, but no concern was raised of the kind now under consideration. Each of the applicants was represented by experienced counsel, who were astute to take exception where it was necessary to do so. The complaint now made goes, of course, to the very heart of the case against the applicants. We have no doubt that, had there been any risk of misunderstanding, this would have been drawn to the judge's attention at the time.

Agrees ... that a course of conduct shall be pursued which will involve the commission of an offence ...'

338 The judge set out clearly for the jury that the offence of conspiracy under s 321(1) of the Crimes Act 1958 (Vic) involved an agreement 'that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement.' On the Crown case, the agreement was to commit individual acts of trafficking which would, collectively, involve not less than the commercial quantity of heroin. That is, the offence the subject of the alleged agreement was what is commonly called 'Giretti-style trafficking'. This is a reference to the 1986 decision of Giretti v R[145] which held that the offence of trafficking under ss 70 and 71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) can be committed by a course of conduct, as well as by an individual transaction.

339 The complaint now made is that, although the Crown case was in essence that the parties had agreed to conduct a trafficking business through Le, the judge gave the jury no direction on the conduct of a business. We reject this complaint. It was quite sufficient for the jury to be told, in the language of s 321(1) itself, that what had to be proved was an agreement to pursue 'a course of conduct'. As we have already said, the question which the jury had to answer was that which the judge spelt out clearly and unambiguously for them: had it been proved beyond reasonable doubt that the relevant applicant had been a party to the alleged agreement?

340 One further argument should be mentioned. It was contended for Cox that, even if it was open to conclude that he intended over a series of future transactions to traffick in heroin in not less than a commercial quantity, questions still arose as to whether

an intent to traffick in a series of individual transactions each of which constitute less than a commercial quantity amounts to an intent to commit the offence of trafficking in heroin in a quantity that was not less than a commercial quantity. It will be so only insofar as Giretti-style trafficking allows for the toting up of a series of individual intents to form a larger intent - the later constituting the prescribed intent as to quantity.

341 In our view, this argument is misconceived. As we have already made clear, the judge's direction made clear to the jury that they had to be satisfied that the intent with respect to trafficking in not less than a commercial quantity existed at the time of the agreement. There was, accordingly, no scope for any 'toting up of intents'.

342 Both the Cox and Sadler applications included a ground in the following terms:[146]

The learned trial judge erred in his directions to the jury concerning the law of conspiracy, and, in particular the learned judge erred in his description to the jury of how the jury might reason and thereby conclude that applicant was a party to the charged conspiracy.

343 The submission for Cox (which was adopted by counsel for Sadler) noted that the judge had correctly directed the jury that, in order for them to find that Cox was a party to the charged conspiracy, they must find the existence of a conspiracy between (at least two of) Cox, Sadler and Ferguson and, further, that Cox was a party to that conspiracy.[147] As to the existence of the conspiracy, the jury were directed that they were permitted to examine the words and conduct of each of the alleged conspirators. In relation to proof that Cox himself was a party to the conspiracy, the jury were directed to examine only his words and conduct.

344 It was submitted that 'it was in error for the judge to have separated out the aspects of conspiracy in this manner.' The direction was said to be an invitation to the jury

to reason that [Cox] was a party to a certain found conspiracy (that may not have involved [him]) by examination purely of [his] acts conduct and words ...

These directions set the jury an impossible task ... and any conviction based upon them must be unsafe both as a matter of law and, particularly, with regard to the circumstances of the present case.

345 According to the submission for Cox, the 'preponderance of evidence suggested an illegal combination between Sadler and Ferguson'. This being so, it was said, the jury was likely to have first found a conspiracy between Sadler and Ferguson and then to have proceeded to determine whether Cox was a party to that particular conspiracy. But an examination of Cox's own words and conduct in isolation could not, it was said, permit a conclusion that he was party to Ferguson and Sadler's agreement.

346 This submission must be rejected. It is wrong both in law and in fact. As to the law, the High Court emphasised in Ahern v The Queen[148] the importance of drawing 'a clear distinction' between the existence of a conspiracy and the participation of each of the alleged conspirators in it.[149] The necessity for the distinction arises precisely because of the narrower evidentiary basis for proof of participation. The 'order of proof' of the elements will vary according to the circumstances of the case.[150] The direction which his Honour gave was entirely orthodox.

347 Nor is there any indication that the jury in fact found it 'an impossible task'. Neither senior counsel for Cox (who also appeared on the appeal) nor counsel for Sadler took exception to this part of the charge. There was no suggestion that the jury would have difficulty following the judge's directions. The jury sought no clarification, doubtless because the judge had explained to them three times, very clearly, what was required of them in this regard. Contrary to the submission, the evidence of Cox's own words and conduct - viewed in isolation - did permit a conclusion that he was party to the conspiracy. The same was true in Sadler's case.

The trial of the Applicant miscarried in that the prosecution failed to provide evidence relating to information provided to police by the witness Duy Le about Ky Quoc Pham.

349 Le was arrested in December 2002 and taken into custody.[151] He was then debriefed by two officers from the CEJA Task Force, Detective Senior Sergeant Paul Ross and Detective Sergeant O'Neill. At Le's request, the initial conversation with the CEJA officers was not tape-recorded. Le was told that any cooperation he gave to CEJA would be brought to the attention of the Court in relation to the matters on which he had been arrested. His concern was not so much the existence of the charges, but what was going to happen to him if he was incarcerated in Victoria.

350 Le was interviewed for debriefing on a number of occasions between December 2002 and May 2003. The evidence given at Ferguson's trial was that there was no video recording of the debriefing. 'They were just tape recorded'. Transcripts of the audio recordings were provided to the defence in answer to a subpoena.

351 The Cox and Sadler trial proceeded on the same understanding. Defence counsel had available to them transcripts of the debriefs, but there was understood to be no video record. Unexpectedly, however, after that trial had been running for a number of weeks, senior counsel for Cox was informed by the Crown that the debriefings had indeed been videotaped and that substantial video footage existed. The matter was raised with the trial judge in the absence of the jury. His Honour immediately expressed concern as to whether the non-provision of the video footage had adversely affected the conduct of the defence. His Honour said:

It seems to me at the moment the only disadvantage would be that you have cross-examined Duy Le without the benefit of actually not only hearing but also watching him in the debriefs.

Senior counsel for Cox agreed that there was no other disadvantage. His Honour described the failure by the prosecution to produce the videotapes as 'a matter of very grave concern'. He told defence counsel that they would have the right to recall any witness for cross-examination on any issue arising out of the tapes.

352 A voir dire was then conducted. In the course of cross-examining Detective Sergeant O'Neill, senior counsel for Cox drew attention to what he described as 'a crucial exchange' between Le and the interviewing officers in December 2002. It is this exchange which is said to have been of potential significance in the Ferguson trial. The section of the videotape in question lasted between one and one-and-a-half minutes. It covers the concluding stage of the interview between Detective Sergeant O'Neill and Detective Senior Sergeant Ross and Le on 21 December 2002.

353 What is said to be significant is that Le is seen to make 'a cut-throat action with his hand across his throat'. The transcript of the interview records that, at that point, Le was being questioned about his uncle, Pham. This was taken by the interviewing officers as a signal that he did not want to discuss issues relating to his uncle. Following the making of that gesture, the audiotape was turned off, although the conversation with Le continued 'for quite a considerable time' and was covertly recorded on videotape. Senior counsel for Cox pointed out to Detective Sergeant O'Neill that the fact that the conversation had continued had not been revealed when he was questioned at the committal in 2004. Detective Sergeant O'Neill confirmed that the conversation had not stuck in his mind: 'I still don't consider it to be a major exchange in relation to Pham. To me it wasn't that significant.'

354 Senior counsel for Cox reminded Detective Sergeant O'Neill that what was being put to him at the committal was that Le

despite having been told that he was to effectively cooperate and not withhold information, was positively seeking to withhold information from you when you were interviewing him. That was the suggestion that was being made, was it not, that he was controlling you rather than you controlling him in terms of information flow?

O'NEILL: Well, he certainly had his perspective on what he wanted to talk to us about in relation to his uncle.

355 In the event, no application was made to recall Le for further cross-examination. Indeed, counsel for both Cox and Sadler opposed the prosecutor being given leave to re-examine in order to correct the record about the existence of the video recordings. The defence concern was that, if it were now revealed that videotapes existed, the jury might speculate as to what they showed and - unless the jury were in fact shown the videotapes - might speculate that the video footage did not assist either accused.

356 The judge ruled that the matter should be corrected by way of re-examination. His Honour was not persuaded that the accused would suffer any prejudice should the truth be revealed to the jury. His Honour said:

The main attack on Duy Le in cross-examination focused on his background and antecedents, and particularly on the fact that when he spoke to CEJA Task Force on 6 December 2002 and following he was a person who stood to gain a considerable benefit by telling them what he thought they would want to know. There was also, it seemed to me, suggestions that prior to the taped interviews there had been off-tape discussions between CEJA and Duy Le, both in December 2002 and, importantly, at a period during May 2003, in which Duy Le had been led to believe that certain matters ought to be revealed by him. No cross-examination, as I recall it, was directed to Duy Le that while the tapes were running there was anything in his demeanour or anything in the behaviour or conduct of the investigators which assisted him to concoct or develop any of his answers. Thus the real thrust of the attack on the credit of Duy Le has not been what occurred while the tapes were running but, rather, what occurred before they were running and also, of course, as to his status as a person in grave peril before he decided to assist the CEJA Task force as an informer.

On the other hand, his Honour said, revealing the truth about the existence of the videotapes might well assist the accused, by enabling their counsel to point out in cross-examination that

the failure to reveal the tapes until recently speaks very poorly, at the very least, of the professionalism and competence of those who were entrusted with making the tapes, storing them and later producing them.

357 The submission advanced on behalf of Ferguson, in support of ground 11, is that the undisclosed video material

had the potential to put a lie to the suggestion that Duy Le had given full and frank evidence to the investigators. Such material had the potential to powerfully demonstrate that the evidence of Duy Le as to Ky Quoc Pham was inherently unreliable.

Specific reliance is placed on the portion of the videotape showing Le running a finger across his throat when being questioned about Pham.

358 According to the submission, the Crown case against Ferguson focused on 'the three Cs - contacts, car and cash.' 'Car' referred to the alleged purchase by Ferguson of a BMW from Le. 'Contacts' referred to allegedly frequent telephone contact between Ferguson and Le. According to the submission:

Central to the Applicant's case was a suggested explanation for "the car" and "the contacts" that involved Ky Quoc Pham (the uncle of Duy Le). For the Applicant was suggesting that "the contacts" involved contact or attempted contact between himself and Ky Quoc Pham and that he had purchased the BMW from Ky Quoc Pham. On the Applicant's account this occurred as part of an attempt to cultivate Ky Quoc Pham (who was a major heroin trafficker) in the context of somewhat unconventional investigative procedures.

359 Le's uncontested evidence in the Ferguson trial was that Pham supplied him with heroin, which he on-sold. Up to April 1999, Pham had been Le's major supplier. The supply ceased for the period after April 1999 and resumed later that year or early 2000. Pham was a 'very active' drug trafficker and this was why - so Ferguson told Le - Pham and his wife were 'being looked at'. Le confirmed under cross-examination that Ferguson had been 'very, very keen indeed' to get information from Pham about drug traffickers. Police wanted information about large heroin suppliers, which Le himself could not provide. Le did not, however, accept that - as Ferguson would later say in his own evidence - Ferguson had wanted to recruit Pham as an informer. Le confirmed that there had been various dealings between Ferguson and Pham, in which Ferguson had used him as an intermediary. He was not aware of any independent relationship between Ferguson and Pham.

360 As to the BMW, we referred earlier to Le's evidence that he had purchased a BMW and, without registering it in his own name, had on-sold it to Ferguson. Ferguson subsequently gave evidence that he had purchased the BMW from Pham. Ferguson did concede under cross-examination that it was inappropriate for a police officer involved in investigating drug trafficking to have purchased a car 'from a person who, to your knowledge and belief, was an international drug trafficker'.

361 This topic was not, however, 'central to Ferguson's case', as the appeal submission asserted. On the contrary, it barely featured in the cross-examination of Le. The topic was not raised until almost the end of the lengthy cross-examination, and then only formally. This was the extent of the exchange:

COUNSEL: In any event, what I have put to you is that that vehicle was sold to Mr Ferguson by your uncle, Uncle Pham?

WITNESS: No.

COUNSEL: You disagree?

WITNESS: Yes.

COUNSEL: You owed him money at about this particular point in time, didn't you?

WITNESS: I don't know. As I said before, drug dealing, you get things on credit and you pay them off and you get more credit, so I don't know what the situation was at that time.

COUNSEL: I want to move on to something else.

Notably, it was only after an objection from the prosecutor - who contended that the cross-examiner must make clear which aspects of Le's evidence about the BMW were challenged - that defence counsel put a few additional propositions, about what Ferguson would say was the lack of any contact between him and Le in connection with the sale and acquisition of the BMW.

362 Nor did Ferguson's own evidence in any way suggest that his purchase of the BMW from Pham occurred 'as part of an attempt to cultivate' Pham. The purchase was described by Ferguson as a self-contained transaction. He made no attempt to link it to what he said separately about his wish to cultivate Pham as an informer.

363 Again, the nature and extent of the relationship between Ferguson and Pham had no significant bearing on the evidence as to the telephone contacts between Ferguson and Le. Indeed, as the cross-examination of Ferguson in relation to the BMW revealed, one of the difficulties for Ferguson was that the telephone records showed him having contact with Le rather than Pham, at the relevant time.

364 In the Ferguson trial, as subsequently in the Cox and Sadler trial, the thrust of the attack on Le was directed at his unreliability. Thus, Le agreed under cross-examination that he had told lies when it suited him; was always trying to get the best results for himself; was in 'a lot of trouble' when he agreed to be an informer; and knew that the more information he provided to police, the greater benefit he was likely to derive in relation to his own situation.

365 Unsurprisingly, it was put to Le on several occasions by counsel for Ferguson, that he had fabricated or changed his evidence to suit his own purposes. The following passage is illustrative:

COUNSEL: What I am suggesting to you is that when you give an account of these incidents that I am saying to you are total fabrications, I am putting it to you that at the time you first gave these accounts and every other time since, you had done so to achieve the objective that was in your mind at the beginning, namely to get the best possible outcome for you because of your criminal behaviour?

WITNESS: I believe that information I gave was what I remembered at the time and whether I was getting any benefit out of it or not.

366 There is nothing in the way in which the Ferguson trial was conducted which suggests that the unavailability of the videotapes affected in any way the conduct of Ferguson's defence. The defence were well aware of Le's reluctance to speak about Pham. The transcript of the 21 December interview, up to the point of termination, was available to the defence. It recorded Le expressly confirming to the interviewing officers that he was 'not keen to discuss [his] uncle.' Moreover, it was clear from Le's own evidence that he had lied to police in order to protect Pham, by falsely identifying another person as his supplier of heroin. Finally, counsel for Ferguson pointed out to Le that 'on a number of occasions' he had refused to tell police about Pham's whereabouts. There was thus ample basis for exploring Le's reluctance to speak about Pham had that been of any real significance to the defence. But, as we have said, that was not how the defence was conducted.

367 The critical issue was whether Le was to be believed on the account he gave of his corrupt dealings with Ferguson. In relation to the BMW, there was a direct clash between Le's evidence and Ferguson's. The jury were ideally placed, having seen both men give evidence, to form their own conclusions.

368 For the reasons we have given, this ground is simply untenable, and must be rejected.

The trial of the applicant miscarried in that the prosecution failed to provide evidence that was relevant to the witness Kenneth Lai.

In the Ferguson trial, Lai gave evidence of his dealings with Cox and Sadler. He said nothing about Ferguson.[152] As noted earlier, Lai gave evidence that, following his arrest in early 1999 on possession and trafficking offences, he was approached by Cox and Sadler, who offered to assist him in getting bail if he would provide them with the information. If the information resulted in an arrest, he would receive payment. Lai informed on Le's drug dealing, and Le was subsequently arrested. Following the arrest, Lai said that Cox and Sadler proposed to him that he could sell drugs on their behalf. They offered to supply him with heroin more cheaply than he was then able to obtain it, on the basis that the profit on resale would be split between them.[153]

370 Counsel for Ferguson put to Lai that his evidence of Cox and Sadler's proposals for corrupt dealings was a complete fabrication. The direct challenge was, however, preceded by a series of questions in which the cross-examiner sought to establish first, that Lai had been exposed as an informer in relation to Le and that, as a result, his ability to deal freely in drugs, either buying or selling, was 'severely restricted because you were a known informer'. Secondly, defence counsel took time to establish that Lai was 'in the drug scene a very small time player':

COUNSEL: You weren't supplying and selling blocks or cakes of heroin, were you?

WITNESS: No.

COUNSEL: You were an ounce man or a grams man?

WITNESS: Yes.

COUNSEL: You were working on the streets, weren't you?

WITNESS: Yes and no.

COUNSEL: You didn't have a safe house?

WITNESS: As in?

COUNSEL: Do you know what I mean by a safe house?

WITNESS: No.

COUNSEL: You weren't dealing with large heroin suppliers from Sydney, were you?

WITNESS: No.

COUNSEL: You weren't in a position to buy in your own right a cake of heroin, were you?

WITNESS: No.

371 Lai rejected defence counsel's suggestion that he had fabricated his evidence about the Cox and Sadler approach. The following exchange then took place:

COUNSEL: And ... the reason that it never happened, Lai, is because you were untouchable because of what you had done, informing on Dennis Le; you were not worth anything to anybody at that stage?

WITNESS: No.

372 The complaint now made on behalf of Ferguson is that the police had in their possession, but counsel for Ferguson did not, internal police reports recording disclosures to police by Lai in early 1999 that:

(a) he had been a very substantial wholesale dealer in heroin;

(b) he had purchased 80 ounces of heroin over a six month period;

(c) he had substantial connections to organised crime syndicates in Melbourne and Sydney; and

(d) he had been a high level informer to both the Asian Squad and the Drug Squad of Victoria Police.

373 The police documents were subsequently used by counsel for Cox when cross-examining Lai in the Cox and Sadler trial. Lai was taken, at some length, through the various pieces of information which he was recorded as having provided to Victoria Police over the three day period 18-20 January 1999. He accepted that he had 'at periods of time' been a very substantial wholesaler of heroin. He also acknowledged that the sort of information he was then giving Victoria Police was about 'people far higher up the food chain of drug traffickers than [Duy] Le'. Senior counsel for Cox explained to the judge, in the absence of the jury, that the investigation of these matters was relevant to Lai's claim, in evidence-in-chief, that he was not an informer. It was also said to be relevant to 'the stimulus that apparently underscored him providing this extraordinary amount of information when he did in the circumstances that he did.'

374 The latter issue was pursued in the cross-examination of Lai. The object of the questioning on this topic appeared to be to establish that there must have been a relationship of considerable trust between Lai and the police officers with whom he was speaking, in order for him to have felt safe in providing such sensitive information about major figures in the drug trafficking scene. Nothing further was made of this, however, in the cross-examination of Lai about his serious allegations against Cox and Sadler.

375 Counsel for Cox had Lai adopt as correct the evidence he had given at the Ferguson trial about the adverse effect on his drug dealing activities of being a suspected informer in relation to Le's arrest. Both counsel for Cox and counsel for Sadler directly challenged Lai's evidence about the alleged corrupt approaches, but the puttage was essentially formal. Certainly, there was no suggestion in cross-examination that the credibility of his evidence was affected by reason of the kind of information he had given to police in early 1999, either about his own dealings or about the activities of others.

376 Once again, therefore, we are wholly unpersuaded that the unavailability of the police documents to counsel for Ferguson had any material effect on the defence case as presented on his behalf. First, as already noted, the approach adopted by counsel for Ferguson, in order to attempt to discredit Lai, was to portray him as a small-time, low-level drug dealer. The police material would not have assisted that approach, which was evidently judged as being to Ferguson's forensic advantage.

377 Secondly, there was no issue in the Ferguson trial about whether and to what extent Lai had otherwise been an informer. The uncontested fact was that police had secured Lai's cooperation following his arrest, as a result of which he became an informer in relation to Le.

378 In any event, as the submission for the Crown pointed out, it is far from clear that there was any material non-disclosure in relation to these documents. At the committal proceeding, in which all three applicants participated and were represented by counsel, Lai was cross-examined about whether he was already an informer to the Asian Squad of the Victorian Police at the relevant time. It was put to him by counsel for Cox that 'there are records which we have that indicate that you were already a registered informer to the Asian Squad.' Counsel for Ferguson at trial was not the same counsel as had represented him at the committal, but this is of no consequence if, as appears, the relevant documents were available to (at least) defence counsel for Cox at that time. The matter having been raised in the cross-examination of Lai at the committal, the legal team for Ferguson were on notice that - if they did not already have them - such records existed and could be obtained.

380 Each applicant advanced a ground contending, in substance, that if none of the individual grounds of appeal was held to have caused a substantial miscarriage of justice, they should in combination be held to have caused such a miscarriage. The submission for Sadler, for example, was that 'the combined force of the errors is such that the applicant has not had a fair trial according to law.'

381 For the reasons we have given, none of the grounds alleging specific error has been made out. It follows that the argument based on aggregation of errors must also be rejected. We would add that, having reviewed the transcript of the trials, we are satisfied that they were conducted with scrupulous fairness, according to law.

382 Each of the applicants advanced a ground contending that the guilty verdict against him was unsafe and unsatisfactory. Although this is the conventional terminology, the ground of appeal actually invoked is that

the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence ...[154]

In the event, Ferguson abandoned this ground but it was maintained by Cox and Sadler.

383 Since the High Court's 1994 decision in M v The Queen,[155] the approach required of appellate courts in considering the 'unsafe and unsatisfactory' ground has been clear.[156] The analysis involves the following steps:

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.

3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.[157]

384 In Libke v The Queen,[158] Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground of appeal:

But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[159] It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[160]

385 In other words, the question 'Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?' requires the court of criminal appeal to decide whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard. To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt'[161] or whether, instead, the 'path to a conviction is open'.[162]

386 The submission for both Cox and Sadler was that the jury ought to have entertained a reasonable doubt as to whether

the applicant was party to one conspiracy to traffick in not less than a commercial quantity and that he intended pursuant to that conspiracy to traffick in an amount of heroin that was not less than a commercial quantity.

The submission for Sadler urged this Court to scrutinise closely the evidence of Le and Lai and Tran 'mindful of the directions given to the jury on the evidence of each of these three witnesses'. The evidence of Le was said to be 'vague [and] replete with inconsistency and implausibility.' Reliance was placed on what was said to be a failure by the investigating police 'to properly investigate all allegations made by [Le] and circumstances relevant to his veracity, including other sources of potential heroin supply to him, especially Ky Quoc Pham.'

387 The submission for Cox contended that, even if it was open to the jury to find that he trafficked in heroin to Le over a period in August 1999, it was not open to find that he agreed with either Ferguson, Sadler or both, to traffick in heroin. In oral argument, it was said to be 'a matter of sheer speculation' as to whether anything which occurred after May 2000 could have proved the existence of conspiracy to traffick a commercial quantity of heroin. It was argued that, although there was subsequent trafficking involving Sadler and Ferguson, the only evidence against Cox after May 2000 was the 'linked phone calls'. According to the submission, the three men were close acquaintances, such that the fact that they 'were on the phone to one another all the time' supported a benign inference just as much as an adverse one.

388 In our view, neither the verdict against Cox nor the verdict against Sadler was unsafe and unsatisfactory. There was a substantial body of evidence on the basis of which it was open to the jury, acting reasonably, to convict each of them of participation in the charged conspiracy. Of course, as with any circumstantial case, there was scope for debate about the inferences to be drawn from the evidence. There was, moreover, ample scope for debate about the credibility of the Crown witnesses. All of these matters were exhaustively ventilated in the Cox and Sadler trial - in cross-examination, in final addresses and in the judge's charge.

389 In respect of each component of the circumstantial case, the judge repeatedly reminded the jury that they could only draw the inferences which the Crown invited them to draw if they were satisfied that they were the only inferences reasonably available in the circumstances. The telephone records of conversations involving Cox provide a good example. As the judge carefully explained to the jury, Cox was recorded as making and receiving calls to and from Ferguson/Sadler/Le at various times in the period June 2000 - November 2002. His Honour summarised both the Crown and defence arguments as to the inferences which should be drawn from these records. And he emphasised that the jury could only draw the adverse inference if they were satisfied that it was the only reasonable inference available on the facts and circumstances of the case.

390 Whether guilt had been proved depended in each case on quintessential jury questions, about the credibility of witnesses and about the plausibility of inferences and explanations. The jury had the advantage of seeing the witnesses give evidence. It was for them to decide whether the Crown case had been established beyond reasonable doubt, and it was open to them to conclude - in each case - that it had.

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (FERGUSON)

391 Ferguson was sentenced to be imprisoned for a term of 12 years on the count of conspiring to traffick in not less than a commercial quantity of a drug of dependence and for a term of five years on the count of money laundering. The terms were ordered to be served concurrently. The total effective sentence was 12 years' imprisonment. The sentencing judge fixed a minimum term of eight years' imprisonment before Ferguson was to be eligible for parole. Ferguson now seeks leave to appeal against the sentence.

392 The circumstances attending the commission of the offences appear from the Court's reasons for disposing of the application for leave to appeal against conviction. The sentencing judge proceeded upon the basis that the conspiracy was on foot when Ferguson joined it; that he did not participate in the initial corrupt approach to Le; that his participation in the conspiracy commenced in late 1999 or early 2000; that from late 2000 he played the leading role in carrying out the conspiracy; that he gained at least $630,000 from his participation in the conspiracy; and that the sum of $630,000 represented the price of approximately 4.5 kilograms of heroin.

393 As to Ferguson's personal circumstances, he is now 41 years old. He left school at the age of 15 years, having completed Year 10. He undertook an apprenticeship as a diesel mechanic and then worked as a tradesman with the State Electricity Commission. Ferguson joined Victoria Police in 1988. In 1997 he joined the drug squad and was promoted to Detective Senior Constable. In 2000 he was seconded to the National Crime Authority, where he remained for more than a year. He then served with the Organised Crime Squad. In September 2001, Ferguson was involved in a motor vehicle accident and sustained a serious injury to his lower back. He was confined to desk duties for some four months and then returned to the Organised Crime Squad. In September 2002, he underwent an operation on his back and remained off work until he was discharged from the police force in August 2005.

394 The sentencing judge observed that Ferguson had been very hardworking from an early age, working during holidays, at weekends and at nights. He built a house at Lara, where he conducted a farm. In his spare time he worked for long hours on the farm and also carried out transport and building work. In addition to the back injury, which continued to inflict pain upon him, Ferguson suffered from depression, requiring large quantities of antidepressant medicine.

395 Ferguson is married and has three school-age daughters. The sentencing judge accepted that he was a particularly devoted and committed father.

396 The grounds of Ferguson's application for leave to appeal against sentence are as follows:

1. The sentencing discretion miscarried in that the learned sentencing judge had regard to the perceived harmfulness of heroin.
2. The sentencing discretion miscarried in that the applicant was sentenced on the basis that at least five kilograms of heroin had been trafficked.
3. The sentencing discretion miscarried in that the learned sentencing judge failed to sentence the applicant on the basis that all of his sentence would be served in protective custody.

Ground 3 was abandoned at the hearing of the application. A further ground, alleging manifest excess, was abandoned before the hearing.

397 The original outline of submissions filed by the Crown conceded that ground 1 was made out. At the hearing, the Court invited senior counsel for the Crown to review the concession, but proceeded to hear submissions from counsel for Ferguson about the matters to be relied on if the sentencing discretion were to be re-opened. It was submitted that this Court should impose a lower sentence than that imposed by the trial judge, having regard both to the sentences imposed subsequently on Sadler and Cox and to Ferguson's health problems. The matter was adjourned for further hearing, to enable additional material to be filed on Ferguson's behalf.

398 When the hearing of the sentence appeal resumed on 18 May 2009, senior counsel for the Crown informed the Court that the concession on ground 1 was withdrawn. For reasons which follow, it was correctly withdrawn.

399 In R v Pidoto and O'Dea ('Pidoto')[163] it was held that a sentencing judge erred if he or she imposed his or her own individual assessment of the perniciousness of the drug in question.[164] Nothing said by the Court in Pidoto was, however, directed at remarks of a general character about the harm caused by trafficking in a drug of dependence. When read in their full context, the remarks of the sentencing judge in the present case can be seen to have been essentially of that character:

The object and purpose of the conspiracy of which you were convicted, the trafficking of heroin in more than a commercial quantity, is of itself a most serious crime carrying a maximum of 25 years' imprisonment. Illicit drugs such as heroin are an abominable social evil. They have a cruel and destructive impact on lives, on families and on society. The trafficking of drugs preys on the young, the weak and the vulnerable. It warps and degrades standards of decent civilised behaviour. It is a thoroughly twisted and despicable enterprise, conducted by greedy and callous individuals who have no regard for the trail of human misery which their trade creates.

Heroin is an addictive and potentially lethal substance. Its effects can be, and commonly are, devastating. It has been the melancholy experience of courts to witness all too frequently the tragic and appalling consequences arising from its consumption and abuse. As a member of the Drug Squad, you must have been fully aware of the suffering and harm which would be caused by the drugs which you conspired to traffick.

The crime of conspiracy to traffick heroin is every bit as heinous as the crime of trafficking itself. Indeed, this is reflected by the fact that the legislation prescribes the same maximum penalty as it does for the act of trafficking. The vice and gravity of the conspiracy lies, at least in substantial measure, in the combination by you with your fellow conspirators to achieve your nefarious end.

The offence of conspiracy to traffick drugs is fundamentally born of ruthless and callous greed. Those who embark on such enterprises expect to make significant profits. The role of the courts is to ensure that those persons are left in no doubt that when they are brought before the court for their crimes, they can expect no mercy whatsoever. The duty of the court is to impose a sentence of sufficient severity that it sends a clear message to the community that activity such as yours will not be tolerated. The principle of general deterrence is especially prominent in offences involving drug trafficking and it requires the courts to impose sentences which are sufficiently severe to deter would-be drug traffickers from succumbing to the lure of the profits of that trade.[165]

400 It can be seen that his Honour referred to the harmful effects of heroin addiction by way of exemplifying the general comments he had made about the 'abominable social evil' of illicit drugs. And the reference to heroin was followed by general remarks about 'offences involving drug trafficking'. This case is thus quite different from Pidoto. In that case, the sentencing judge drew attention to the 'really adverse behaviour' and 'significant mental health problems' associated with the use of the drug in question (ecstasy) and said that, as a result, the offence for which he was imposing sentence 'must be seen as trafficking in a very significant drug'.[166] The judge's perception of the particular harms associated with ecstasy was thus brought to bear directly on the sentencing task. In the present case, by contrast, neither the sentencing remarks nor the sentence imposed suggest that the judge brought to bear on the sentencing decision any particular view of the harms associated with heroin. He was concerned with the evil of drug trafficking as a matter of generality.

401 In this context, the maximum sentence for the offence of conspiring to traffick in not less than a commercial quantity of a drug of dependence was 25 years' imprisonment. The undoubted seriousness of the offence was to be viewed in the light of the fact that it was committed by a member of the Victorian police force who was working in that part of the police force charged with preventing and detecting trafficking in illicit drugs. As the judge said, Ferguson 'flagrantly breached the trust' which the community had placed in him and 'unconscionably took advantage of his position' to advance his criminal enterprise. Ferguson's offending cast a shadow upon the work and lives of his fellow police officers. It was a 'blight on the administration and enforcement of justice in this State'.

402 Money laundering is also a serious offence and in this case involved the proceeds of drug trafficking. We think, however, that his Honour dealt appropriately with the conviction on the count of money laundering by making the sentence wholly concurrent upon the sentence imposed on the count of conspiring to traffick in a drug of dependence.

403 As the sentencing judge observed, there were a number of mitigating factors upon which Ferguson could rely. His physical and mental health were likely to render a term of imprisonment more difficult for him than a person in good health and it would be more difficult for the applicant to reintegrate into the community and gain employment when he was released. As a devoted father, Ferguson would be punished by being deprived of the experience of helping to raise his young children. Ferguson was a man of previous good character. He had no prior convictions, he was a dedicated husband and father and a very good worker. Imprisonment would be more difficult for him, not merely because of his physical and mental health, but also because of his position as a police officer, which would require him to spend a significant amount of time in protective custody.

404 Overall, we are of the opinion that the gravity of the offending required a sentence no less than that which was imposed by his Honour, notwithstanding the mitigating factors to which we have referred. The sentence did not reflect a mistaken view of the gravity of the offence.

405 Pursuant to the second ground of the application, it was submitted that the evidence did not permit a finding that Ferguson trafficked in a specific quantity. His Honour's estimate of the amount of heroin trafficked to Le during the time of the conspiracy was based upon Curtin's assessment of the betterment in Ferguson's financial position and a heavily discounted contribution from his co-conspirators. It was, as his Honour said, a conservative estimate, which in our view adequately allowed for a degree of imprecision in the figure produced by Curtin.

406 For the foregoing reasons, we are of the opinion that none of the grounds of the application for leave to appeal against sentence has been established. Accordingly, it is not necessary for this Court to deal with matters advanced as relevant to a re-sentencing of the applicant.

APPEAL AGAINST PECUNIARY PENALTY ORDER (FERGUSON)

407 Following Ferguson's conviction, but before he was sentenced, the Director of Public Prosecutions ('DPP') made application for a PPO against him under Part 8 of the Confiscation Act, and for a declaration under s 70 of that Act. The application was eventually heard and determined in December 2006, by the judge who presided over Ferguson's trial and passed sentence on him.

408 Both charges of which Ferguson was convicted were 'automatic forfeiture offences' under the Confiscation Act. His conviction on those charges enabled the DPP to apply for an order under s 59(1) that he pay to the State of Victoria a pecuniary penalty equal to the value of the benefits derived by him 'in relation to' the offences.

409 Section 67(1) of the Act provides in relevant part as follows:

(1) For the purposes of this Part, the value of the benefits derived by a defendant in relation to an offence may include -

(aa) any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money;

(a) any property that was derived or realised, directly or indirectly, by the defendant or another person, at the request or by the direction of the defendant, as the result of the commission of the offence;

...

(c) any increase in the total value of property in which the defendant has an interest in the period beginning immediately before the commission of the offence and ending at some time after the commission of the offence that the court is not satisfied was due to causes unrelated to the commission of the offence.

In assessing the value of the benefits derived, the Court may take into account evidence given in the criminal proceedings. For that purpose, the whole of the transcript is admissible in evidence as if it were a record of evidence given on the hearing of the application.[167]

410 The judge assessed the value of the benefits derived by Ferguson in relation to the conspiracy to be $995,000. He made an order under s 59(1)(b) of the Act that Ferguson pay that sum to the State. The sum of $995,000 was made up of two amounts. The first was an amount of $680,000 which the judge concluded was money received by Ferguson as a result of the offences.[168] The second was an amount of $315,000, which his Honour was satisfied represented an increase in the value of property related to the commission of the offences.[169]

411 Under s 142(3) of the Confiscation Act, there is a right of appeal against a PPO 'in the same manner as if it were, or were part of, the sentence imposed in respect of the offence.' The grounds of appeal challenge both elements of the judge's calculation. We deal with them in turn.

412 The judge based his calculation of the amount of money received by Ferguson on the evidence of financial betterment given by Curtin at Ferguson's trial. His Honour noted that, according to Curtin's analyses, there had been an increase in the assets of the Fergusons amounting to more than $697,000, and unexplained cash transactions amounting to more than $710,000. His Honour said:

The Crown case at Ferguson's trial was that the cash transactions of $710,000, and the growth of assets of Mr and Mrs Ferguson of almost $700,000, were funded by the proceeds of drug trafficking carried out by Ferguson pursuant to the conspiracy for which he was convicted. Thus, in this application, the Crown submits that that sum is the quantum of the money each received by Ferguson as a result of the commission of the offence, pursuant to s 67(aa) of the Confiscation Act.[170]

The judge concluded that Curtin's basic methodology was sound. He took the cash figure of $710,000 as his starting-point for the calculation of the money received. After making deductions in Ferguson's favour totalling $30,000, the judge concluded on the balance of probabilities that Ferguson had received 'at least $680,000' as a result of the offending.

413 One of Ferguson's principal grounds of appeal against conviction related to the admissibility of the betterment evidence given by Curtin. For reasons given earlier, we have rejected that ground.[171] It was conceded on behalf of Ferguson that, if the relevant ground of appeal against conviction failed, so too would this ground of appeal against the pecuniary penalty order. It follows that ground 1 must be rejected.

In imposing the pecuniary penalty order the learned sentencing judge erred in his calculation of the period to which s 67(1)(c) of the Confiscation Act could apply.

414 The second amount represented the increase in value of a property in Bambra which Ferguson had purchased (in his wife's maiden name) in early 2001. The property was purchased for the sum of $335,000. As at 10 March 2006, it was valued at $650,000. There was no dispute about the valuation. The judge accepted the DPP's contention that the sum of $315,000, being the increase in value of the Bambra property between 2001 and 2006, was to be included in the value of the benefits derived by Ferguson, pursuant to s 67(1)(c).

415 The judge was satisfied that Ferguson was able to purchase the Bambra property by using some of the monies - that is, the $680,000 - which he had received as a result of the conspiracy. His reasons were as follows:

Throughout the relevant period Ferguson and his wife were living at 130 Branch Road, Lara, which they had purchased in December 1993. Until February 2001 that property was the subject of a mortgage to the Bank of Melbourne. At that time the debt, secured by the mortgage, amounted to $200,000. In late January 2001 Ferguson inspected the property at Bambra, and negotiated the purchase of it for the sum of $335,000. A contract was signed by Joanne Ferguson, in her maiden name Joanne Barrett, for the acquisition of the property on 1 February 2001. In February 2001 Ferguson applied to the Commonwealth Bank for a loan of $353,000 to fund the purchase (including the costs of purchase) of the Bambra property. The application for the loan was successful, and a mortgage was executed by the Fergusons to secure it over both the Bambra and Lara properties. In order to obtain that loan, Ferguson, on 8 February 2001, paid off the Bank of Melbourne mortgage debt over the Lara property, which then amounted to $199,218.

It is clear that Ferguson was able to pay off the Lara mortgage by accessing and using proceeds of the conspiracy. Between October 2000 and February 2001 cash deposits were made into the various bank accounts of the Fergusons totalling $350,000. At that time the trafficking of heroin to Duy Le reached its peak. That sum included $56,100 cash deposited in January 2001,and $221,393 cash deposited in February 2001. Between February 2001 and April 2001 Ferguson carried out a complicated series of transfers of funds, which had been deposited by him into those accounts, between the various bank accounts. Those transfers are depicted in a chart prepared by Mr Curtin. The effect of the transfers was to effect the discharge of the Bank of Melbourne mortgage over Lara. The purchase of Bambra settled on 31 March 2001. For that purpose Ferguson had obtained a loan, secured by mortgages over Bambra and Lara, in the sum of $353,000, from the Commonwealth Bank. The loan consisted of two components, a fixed loan for $200,000, and a home loan of $153,000. In April 2001 Ferguson transferred $140,000 from the Commonwealth Bank Streamline account, in the name of his wife and himself to the home loan account, thereby reducing the debt to some $13,000.

416 The first complaint advanced on behalf of Ferguson was raised during the hearing on 18 May 2009, convened to hear further argument on the application for leave to appeal against sentence. On that occasion, counsel for Ferguson contended that there had been impermissible double counting in his Honour's calculation, first, of the monies received and, secondly, of the increase in value of the Bambra property. The double counting was said to have arisen because, as appears from the extract set out above, Ferguson used some $200,000 of the $680,000 received by him as money to pay off the mortgage on the Lara property. That property was then able to be used as (unencumbered) security for the borrowing necessary to enable the Bambra property to be purchased.

417 This complaint must be rejected. (We note that it was not included in the full statement of grounds of appeal against the PPO, filed on 10 July 2009). There was no double counting. The position would have been exactly the same if the $200,000 had been used as part payment for the Bambra property. This would have represented the conversion of part of the monies received from the conspiracy into a fixed asset, being the property. But, of course, the value of the property at the date of purchase is not counted for the purposes of s 67(1)(c), since the provision is concerned only with an increase in the value of the property.

418 Ground 2 concerns the period by reference to which the increase in value is to be assessed. The period is identified in s 67(1)(c) as 'the period beginning immediately before the commission of the offence and ending at some time after the commission of the offence.' As already noted, his Honour took the relevant period to be that between 1 February 2001, being the date of purchase, and 10 March 2006, being the date of valuation. The judge rejected a submission for Ferguson that the relevant period was between August 1999 and November 2002, a period in respect of which the Director had adduced no evidence.

419 As the judge explained in his reasons, the question was one of construction of s 67(1)(c). The argument for Ferguson was that, on its proper construction, the paragraph authorised the Court to take into account - and only to take into account - an increase in value ('of property in which the defendant has an interest') which occurred in the relevant period. The argument for the Director, which the judge accepted, was that the function of 'the period' was not to identify when the relevant increase in value must have occurred, but rather to identify the property whose (change in) value was to be scrutinised. On this approach, the property which falls for consideration under paragraph (c) is property

in which the defendant has an interest in the period beginning immediately before the commission of the offence and ending at some time after the commission of the offence.

420 His Honour's reasons for preferring this construction were as follows:

Self-evidently, the construction contended for by [defence counsel] involves a restructuring of the sub-section (c), so as to transplant the temporal phrase, which I have quoted above, from its present position in the sub-section to a position immediately after the words "any increase". There is no warrant for such a re-writing of s 67(1)(c). Further, such a restructuring of the sub-section would offend the clear purpose of s 67(1)(c). Section 67(1) is, on its face, designed to treat, as benefits derived by a defendant from an offence, not only direct funds received by the defendant, but also other consequential profits and benefits derived by the defendant. That is the clear purpose of sub-paragraph (a) (which treats as benefits any property derived or realised directly or indirectly as a result of the commission of the offence) and sub-s (b) (which treats as benefits any benefits, service or financial advantage provided for the defendant or any other person as a result of the commission of the offence). In that context s 67(1)(c) is designed to treat as benefits any increase in the value of the property in which the defendant has an interest in the period described in the sub-section, unless the defendant is able to establish that the increase in value was due to causes unrelated to the commission of the offence. In other words sub-s (c) creates, as it were, a presumption that the increase in the value of any property held by the defendant during the relevant period has resulted from the offending for which the defendant has been convicted. In that light it would make no sense for s 67(1)(c) to limit the increase in value, treated as benefits, to any increase sustained during the period offending.

421 We respectfully agree. His Honour's construction of s 67(1)(c) was clearly correct, for the reasons which he gave. This ground also fails, and the appeal against the making of the PPO must therefore be dismissed.

[1] Of 17 grounds initially proposed, grounds 8, 9, 10, 13, 14 and 16 were subsequently abandoned and ground 7A added.

[2] Of 23 grounds initially proposed, ground 9 was subsequently abandoned.

[3] Of 27 grounds initially proposed, grounds 8, 14, 22, 24, 25, 26 and 27 were subsequently abandoned.

[4] Of four grounds initially proposed, ground 4 was subsequently abandoned.

[6] See [123]-[124] below.

[7] The CEJA Task Force was established to investigate allegations of corruption and improper conduct by the Drug Squad.

[8] See [349] below.

[9] R v Christie [1914] AC 545.

[10] R v Cox and Ors (Ruling No 2) [2005] VSC 224 ('Ruling No 2').

[11] R v Cox and Ors (Ruling No 1) [2005] VSC 157 ('Ruling No 1').

[12] We note that the following figures, as presented in Mr Curtin's reports, do not match exactly the figures quoted in the trial judge's rulings. We consider the differences immaterial for the purposes of the three applications.

[14] See [49] - [58] below.

[15] Ruling No 2 [2005] VSC 224, [24].

[16] Note that in Ruling No 2 [2005] VSC 224, the trial judge ruled that Mr Curtin's opinion was admissible with the rider that Mr Curtin could not 'make unqualified use of the term "unsourced" in describing cash deposits and cash payments for which he [had] not been able to identify any source, either on the information available to him, or by application by him of the criteria and assumptions he [had] developed'.

[17] Ruling No 1 [2005] VSC 157.

[18] R v Basha (1989) 39 A Crim R 337. Legislation now provides for this type of inquiry: Crimes (Criminal Trials) Act 1999 (Vic) s 11.

[26] See [32] - [35] above.

[27] Ruling No 2 [2005] VSC 224, [27].

[31] Ruling No 1 [2005] VSC 157, [12], citing Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486, 491 (Dixon CJ). See also R v Bonython (1984) 38 SASR 45, 46-7 (King CJ); R v BDX [2009] VSCA 28, [70]-[79] (Vincent and Weinberg JJA).

[32] Ibid [14], citing R v Silverlock [1894] 2 QB 766, 769.

[33] Ibid, citing R v Darrington & McGauley [1980] VicRp 36; [1980] VR 353, 377 (Jenkinson J).

[34] [2000] WASCA 279; (2000) 22 WAR 527, 575 [336].

[35] His Honour referred to Potts v Miller [1940] HCA 43; (1940) 64 CLR 282, 303 (Dixon J); and Re Montecatini's Patent (1973) 47 ALJR 161, 169 (Gibbs J). See also R v Hally [1962] Qd R 214, 228 (Gibbs J).

[36] Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527, 576 [340], referring to Clare v Peach [1995] 2 Cr App R 333, 338 (Lord Taylor CJ); and Quick v Stoland Pty Ltd [1998] FCA 1200; (1998) 87 FCR 371, 375 (Branson J) and 382-3 (Finkelstein J).

[37] R v Parker [1912] VicLawRp 32; [1912] VLR 152, 158 (Hodges J).

[38] [1912] VicLawRp 32; [1912] VLR 152, 160 (Cussen J).

[39] Ruling No 2 [2005] VSC 224, [27].

[40] See [32] to [35] above.

[41] Ruling No 2 [2005] VSC 224, [30].

[42] Andrew Ligertwood, Australian Evidence (4th ed, 2004), [7.43].

[43] Ruling No 1 [2005] VSC 157, [32].

[44] See [48] above.

[45] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 743-4 [85] (Heydon JA).

[46] Caratti v The Queen [2000] WASCA 279; (2000) 22 WAR 527, 574 [333] and 577 [347].

[47] Ligertwood_,_ above n 42, [7.58]-[7.59].

[48] Ruling No 2 [2005] VSC 224, [41].

[53] [2008] VSCA 101.

[57] The relevant ground of appeal was ground 5A: Strawhorn [2008] VSCA 101, [3].

[58] R v O'Driscoll [2003] NSWCCA 166; (2003) 57 NSWLR 416, 432 [78] (Spigelman CJ).

[59] [2005] NSWCA 152; (2005) 218 ALR 764, 800; [2005] NSWCA 152, [169].

[60] The combined taxable income for the year ended 30 June 1999 was $43,197; for the year ended 30 June 2001, $30,127; and for the year ended 30 June 2002, $25,136. For the year ended 30 June 2000 it was $141,557, but this included a superannuation payout of $140,844.

[61] Ferguson ground 2; Cox ground 5; Sadler ground 4.

[62] R v Cox and Ors (Ruling No 4) [2005] VSCA 255 ('Ruling No 4'), [128]-[129].

[63] R v Cox and Ors (Ruling No 8) [2005] VSC 368, [15]-[16].

[64] Ruling No 2 [2006] VSC 55, [20]-[24].

[65] R v Cox & Sadler (Ruling No 16) [2006] VSC 303 ('Ruling No 16').

[66] DPP v Faure [1993] VicRp 87; [1993] 2 VR 497.

[67] R v Ferguson and Anor (Ruling No 15) [2005] VSC 471, [22]-[24].

[68] [2006] VSC 233.

[69] R v Baskerville [1916] 2 KB 658; Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207; R v Kendrick [1997] 2 VR 699; R v Pisano [1997] 2 VR 342; R v Rayner [1998] 4 VR 818 and R v Kuster [2008] VSCA 261.

[70] R v Trong Duy Ngo [2002] VSCA 188; R v Taylor [2004] VSCA 98; (2004) 8 VR 213, 228 and R v Kuster [2008] VSCA 261, [14], [16].

[71] R v McLachlan [1999] VSCA 127; [1999] 2 VR 553, 561.

[72] [1916] 2 KB 658.

[73] The term 'implicate' does not necessarily mean 'incriminate' - it may mean only 'involve': R v Kerim [1988] 1 Qd R 426, 432; 453; R v Doney (1988) 37 A Crim R 288, 298 (NSW CCA); Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211 and R v Rayner [1998] 4 VR 818.

[74] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 211-12.

[75] R v Galluzzo (1986) 23 A Crim R 211.

[76] [1997] HCA 47; (1997) 191 CLR 275.

[78] R v Martin [2003] VSCA 80; (2003) 142 A Crim R 153, [37] and R v Kuster [2008] VSCA 261, [17].

[79] J D Heydon, Cross on Evidence (7th Australian Ed, 2004), [15,165].

[80] Ridley v Whipp [1916] HCA 76; (1916) 22 CLR 381.

[81] R v Stephenson (1978) 18 SASR 381; R v Nanette [1982] VicRp 8; [1982] VR 81, 86; R v Berrill [1982] Qd R 508; R v Kerim [1988] 1 Qd R 426; R v Kalajzich & Orrock (1989) 39 A Crim R 415, 433; R v M [1995] 1 Qd R 213; R v Pisano [1997] 2 VR 342; R v Kendrick [1997] 2 VR 699, 709; BRS v R [1997] HCA 47; (1997) 191 CLR 275, 297 and R v Gill [2003] VSC 317; (2003) 142 A Crim R 22, 26.

[82] R v Nanette [1982] VicRp 8; [1982] VR 81, 88; R v Berrill [1982] Qd R 508, 526-7 and R v Taylor [2004] VSCA 98; (2004) 8 VR 213, 222.

[83] By 'properly instructed', we mean instructed in accordance with Chamberlain v R [No 2] [1984] HCA 7; (1984) 153 CLR 521, 536 and Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, 578.

[84] R v Hillier [2007] HCA 13; (2007) 228 CLR 618, 637-8 (Gummow, Hayne and Crennan J).

[85] R v Tripodi [1961] VicRp 30; [1961] VR 186, 190-1; R v Fuhrer [1961] VicRp 81; [1961] VR 500, 509; R v Duke (1979) 22 SASR 46, 52 and R v Nanette [1982] VicRp 8; [1982] VR 81, 84.

[86] [2008] VSCA 261.

[87] Eade v The King [1924] HCA 9; (1924) 34 CLR 154, 159 (Knox CJ, Gavin Duffy and Starke JJ); Popovic v Derks [1961] VicRp 67; [1961] VR 413, 420 and R v H (1990) 49 A Crim R 396, 404.

[88] R v Rayner [1998] 4 VR 818, 851-53; R v Kerim [1988] 1 Qd R 426; R v Kalajzich & Orrock (1989) 39 A Crim R 415, 432-33 and R v Goonam (1993) 69 A Crim R 338, 346.

[89] R v Whitehead [1929] 1 KB 99, 102.

[90] Eade v The King [1924] HCA 9; (1924) 34 CLR 154; Edwards v R [1993] HCA 63; (1993) 178 CLR 193, 210 (Deane, Dawson and Gaudron JJ); R v Renzella [1997] 2 VR 88, 92 and Conway v R [2000] FCA 461; (2000) 98 FCR 204, 261.

[91] R v Nguyen [2001] VSCA 1; (2001) 118 A Crim R 479.

[92] R v Nanette [1982] VicRp 8; [1982] VR 81; R v Kalajzich & Orrock (1989) 39 A Crim R 415; R v Radford (1993) 66 A Crim R 210, 239 and Conway v R [2000] FCA 461; (2000) 98 FCR 204, 261.

[93] R v Hartley [1941] 1 KB 5 and DPP v Kilbourne [1973] AC 729.

[94] [2006] VSC 303.

[95] Eade v The King [1924] HCA 9; (1924) 34 CLR 154, 159 (Knox CJ, Gavan Duffy and Starke JJ).

[96] The letter references are to the particular table, and the item numbers designate the specific piece of evidence The impugned items are: A/5, A/6-8, A/9-11, A/12-14, A/16, A/18, A/22-26, A/27-28, A/29-41, A/43-49, A/51-62, A/68-80, B/12-16, and item 22.

[97] BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 297 (Gaudron J), citing R v Kerim [1988] 1 Qd R 426, 447; R v Kalajzich & Orrock (1989) 39 A Crim R 415, 433 and R v Zorad (1990) 19 NSWLR 91, 103.

[98] See [13] above.

[99] R v Kerim [1988] 1 Qd R 426, 432 (Andrews CJ) and 453 (McPherson J). In Doney v the Queen [1990] HCA 51; (1990) 171 CLR 207, 211, the requirement that the evidence 'implicate' the accused was expressed as being met if the evidence said to be corroborative was strengthened 'by confirming or tending to confirm the accused's involvement in the events as related by the accomplice'.

[100] Ruling No 16 [2006] VSC 303, [25].

[101] (1993) 66 A Crim R 210, 238.

[103] R v O'Reilly [1967] 2 QB 722, 727.

[104] R v Radford (1993) 66 A Crim R 210, 238 and R v Lawford & Van De Wiel [1993] SASC 4247; (1993) 61 SASR 542, 555.

[105] [2005] VSC 255.

[106] See [125] above.

[107] Ruling No 4 [2005] VSC 255, [35] citing R v Ongley (1940) 50 WN(NSW) 116, 117; O'Connell v R [1844] EngR 880; (1844) 8 ER 1061, 1093 and Gerakiteys v R [1984] HCA 8; (1983) 153 CLR 317, 327-8 (Brennan J), 333-4 (Deane J).

[108] Ibid [37], citing R v Greenfield [1973] 3 All ER 1050 and Saffron v R (No 1) (1988) 36 A Crim R 262. See R v Perrier [2008] VSCA 97, [41].

[110] Ruling No 1 [2006] VSC 44.

[113] See [207] above.

[114] Black v The Queen [1993] HCA 71; (1993) 179 CLR 44, 51-52.

[115] See generally, R v Muto and Eastey [1996] VicRp 21; [1996] 1 VR 336, 343.

[116] R v Boland [1974] VicRp 100; [1974] VR 849, 866 and R v Matthews [1998] VSCA 2; [1999] 1 VR 534, 537.

[117] R v Gallagher [1986] VicRp 25; [1986] VR 219, 245.

[118] (1978) 52 ALJR 631.

[120] [1986] VicRp 25; [1986] VR 219, 245.

[121] R v McKittrick [1982] 2 VR 637, 641-2 and R v Coates; R v Murphy [2002] NSWCCA 481; (2002) 136 A Crim R 252.

[122] R v Willer (1986) 83 Cr App R 225.

[124] In R v Birks (1990) 19 NSWLR 677, 688, Gleeson CJ described the central object of the rule as being to 'secure fairness'. See also Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 847; Eastman v The Queen (1997) 76 FCR 9, 102 and MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329, 333.

[125] In R v Birks (1990) 19 NSWLR 677, 686, Gleeson CJ described the rule as one of 'professional practice'.

[126] In Stern v National Australia Bank [2000] FCA 294; (2000) 171 ALR 192, 203, the Full Court of the Federal Court said of the rule that it was not 'absolute'. So it would not ordinarily be necessary to put to a party matters which were clearly at issue in the proceedings.

[127] MWJ v R [2005] HCA 74; (2005) 80 ALJR 329.

[128] R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ); Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 847 (Newton J) and Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 235-6 (Mahoney JA).

[129] See, for example, Suvaal v Cessnock City Council [2003] HCA 41; (2003) 77 ALJR 1449, 1467 [102] (McHugh & Kirby JJ).

[130] Water Board v Moustakas [1988] HCA 12; (1988) 77 ALR 193; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447.

[131] In Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, Newton J noted that the rule had two aspects. The first was fairness, but the second was that its breach would affect the weight or cogency of the evidence in question. See also Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1, 22-23.

[132] R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, 552-553.

[133] R v Birks (1990) 19 NSWLR 677, 689 (Gleeson CJ).

[134] Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 236-7.

[135] R v Manunta (1990) 54 SASR 17, 28 and MWJ v R [2005] HCA 74; (2005) 80 ALJR 329.

[136] Ground 6, which concerned the cross-examination of Ferguson, was not relied on as an independent ground. Counsel for Ferguson said that it 'merged into' grounds 7 and 7A.

[137] R v Cox & Sadler (Ruling No 6) [2006] VSC 332.

[138] See [123]-[131] above.

[140] See R v Grondkowski [1946] KB 369; R v Demirok [1976] VicRp 19; [1976] VR 244; R v Torney (1983) 8 A Crim R 437; R v Collie, Kranz and Lovegrove [1991] SASC 2996; (1991) 56 SASR 302; Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 88-9 (Toohey J).

[141] R v Jones and Waghorn (1991) 55 A Crim R 159, 164 (Crockett J).

[142] [1982] HCA 32; (1982) 148 CLR 668, 678.

[143] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.

[144] Ferguson ground 15; Cox ground 21; Sadler ground 19.

[145] Giretti v R (1986) 24 A Crim R 112.

[146] Cox ground 19; Sadler ground 17.

[147] See Ahern v the Queen [1988] HCA 39; (1988) 165 CLR 87.

[151] See [17] above.

[152] He confirmed under cross-examination in the Cox-Sadler trial that he could recall no dealings with Ferguson.

[153] See [203] - [207] above.

[154] Crimes Act 1958 (Vic) s 568(1).

[155] [1994] HCA 63; (1994) 181 CLR 487.

[156] R v Vjestica [2008] VSCA 47; (2008) 182 A Crim R 350, 369-70 (Maxwell P).

[157] See M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493-4 (Mason CJ, Deane, Dawson and Toohey JJ); Jones v The Queen (1997) 191 CLR 439, 451-2 (Gaudron, McHugh and Gummow JJ); MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, 614-5 (Gleeson CJ, Hayne and Callinan JJ), 623-4 (McHugh, Gummow and Kirby JJ); Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, 316 (The Court); R v Tiburcy [2007] VSCA 124, [5] (Nettle JA).

[158] [2007] HCA 30; (2007) 230 CLR 559.

[159] His Honour cited M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492-3.

[160] Libke v TheQueen [2007] HCA 30; (2007) 230 CLR 559, 596-70. See also R v Tiburcy [2007] VSCA 124, [17] (Vincent JA).

[161] R v Shah [2007] SASC 68, [4] (Doyle CJ).

[162] Morabito v R [2007] NSWCCA 126, [34] (Mason P).

[163] [2006] VSCA 185; (2006) 14 VR 269.

[164] R v D'Aloia [2006] VSCA 237; R v Karafilowski [2007] VSCA 156.

[165] R v Ferguson [2006] VSC 163, [30]-[33] (emphasis added).

[166] [2006] VSCA 185; (2006) 14 VR 269, 286.

[167] Section 59(4).

[168] DPP v Ian Norman Ferguson [2006] VSC 484, [29].

[171] See [49] - [58] above.

[172] DPP v Ian Norman Ferguson [2006] VSC 848, [41]-[42].