R v Cox

Case [2003] VSC 245 1 July 2003

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1453 of 2003

STEPHEN ALLAN COX

THE QUEEN

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 June 2003
DATE OF JUDGMENT:	1 July 2003
CASE MAY BE CITED AS:	R v Cox
MEDIUM NEUTRAL CITATION:	[2003] VSC 245

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CRIMINAL LAW – Bail Application – Strength of Crown case against police members - Police Officer in protective custody – Delay before trial - Exceptional Circumstances.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr W.H. Morgan-Payler QC	Ms Kay Robertson Solicitor for Public Prosecutions
For the Applicant	Mr B Rolfe	Galbally & Rolfe

HIS HONOUR:

The applicant, a former Detective Sergeant with the Victorian Drug Squad, was arrested on 26 May 2003 and charged with trafficking in a commercial quantity of heroin between 7 May 1999 and 6 December 2002. He was further charged with conspiring to traffick in a commercial quantity of heroin during the same period. Detective Senior Constables Ian Ferguson and Glen Sadler, members of the same investigation team at the former Drug Squad, and Senior Constable Joanne Ferguson, the wife of Detective Senior Constable Ian Ferguson have also been charged with these and other offences. On the day following his arrest, the applicant Mr Sadler and Ms Ferguson made applications for bail. Ms Ferguson's application was successful, but the applications of the applicant and Mr Sadler were refused. The applicant now seeks bail pursuant to the provisions of the Bail Act 1977.

As the applicant has been charged with offences under s. 71 and s. 79 of the Drugs, Poisons and Controlled Substances Act 1981, it is common ground that bail shall be refused unless the Court is satisfied that exceptional circumstances exist which justify the grant of bail - Section 4(2)(aa)(i) Bail Act 1977. Furthermore, the Crown submits that bail should be refused on the additional ground that there is an unacceptable risk that the applicant, if released on bail, would interfere with witnesses - Section 4(2)(d)(i) Bail Act 1977.

Unacceptable Risk – Interference with Witnesses

It is convenient to first deal with the Crown's allegation that the applicant poses an unacceptable risk that, if released, he would interfere with witnesses. It is for the Crown to discharge the onus of satisfying the Court of this fact. The Crown relies upon the fact that the applicant was a member of the Victoria Police from 1982 until his resignation from the Force on 27 February 2000. Detective Senior Sergeant John Rodger from the Victoria Police Ethical Standards Department prepared a report dated 18 June 2003, being Exhibit A to the affidavit of Peter John Andrew Atkinson filed on behalf of the Crown in opposition to the application for bail. In that report, the author observes that, because of the applicant's contacts within the Victoria Police, investigators believe that he will contact prosecution witnesses and is thereby an unacceptable risk. This appears to be the material upon which the Crown…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cox

Details

AGLC: R v Cox [2003] VSC 245
Case: [2003] VSC 245
Decision Date: 1 July 2003

CaseChat Overview and Summary

In the case of R v Cox, the defendant was a police officer who had been remanded in custody, pending a criminal trial for offences alleged to have occurred while on duty. The Crown's case against the defendant included allegations that were based on the testimony of other police officers. The application before the court was for bail, given the length of time the defendant had spent in custody and the strength of the Crown's case. The defendant argued that the delay in the trial was unjust and that the strength of the Crown's case was weakened by the reliance on the testimony of fellow police officers, who might be unreliable.

The legal issues before the court were whether the defendant had made out a case for bail given the exceptional circumstances of the case, and whether the delay in bringing the case to trial constituted a breach of the defendant's right to a fair trial. The court had to consider the potential for witness intimidation or unreliability, the seriousness of the offences, and the length of time the defendant had already spent in custody. The court also had to consider the public interest in the case, particularly given the defendant's position as a police officer.

The court found that the defendant had made out a case for bail on the basis of the exceptional circumstances of the case. The court noted that the defendant had already spent a significant amount of time in custody and that the delay in bringing the case to trial was unjust. The court also found that the strength of the Crown's case was weakened by the reliance on the testimony of fellow police officers, who might be unreliable. The court further found that the public interest in the case did not outweigh the defendant's right to a fair trial. The court granted the defendant bail, subject to certain conditions.

Orders