R v Cox (No 1) - [2005] VSC 157

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1453 of 2003

THE QUEEN

STEPHEN COX, GLENN SADLER, IAN FERGUSON AND JOANNE FERGUSON

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JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9, 10, 12, 13 May 2005
DATE OF JUDGMENT:	16 May 2005
CASE MAY BE CITED AS:	R v Cox and ors (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 157

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CRIMINAL LAW – Conspiracy to traffic heroin – Money laundering - Expert evidence – Accountant – Admissibility of calculation of “unsourced” cash payments and deposits by accused – Failure by witness to state underlying assumptions – Whether those assumptions are the proper subject for expert evidence – Qualifications of witness as expert.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Leckie, S.C. with Mr D. Brown	Office of Public Prosecutions
For the Defendant Cox	Mr B. Young	Tony Hargreaves & Partners
For the Defendant Sadler	Mr G.A. Georgiou with Ms H. Spowart	Victoria Legal Aid
For the Defendant Ian Ferguson	Mr F. Gucciardo with Ms. A. Marjanovic	C. Marshall & Associates
For the Defendant Joanne Ferguson	Mr S. Grant with Mr T. Kassimatis	Theo Magazis & Associates

HIS HONOUR:

The four accused have been presented jointly on a presentment containing seven counts. On the first count, the accused Stephen Cox (“Cox”), Glenn Sadler (“Sadler”) and Ian Ferguson (“Ian Ferguson”) are charged with conspiring together and with others between 1 April 1999 and 6 December 2002 to traffic a commercial quantity of heroin. Count 2 charges Cox, in the same period, with engaging in transactions involving money and other property which were the proceeds of crime which Cox knew or ought reasonably to have known was derived or realised from some form of illegal activity contrary to s.122 of the Confiscation Act 1987. Count 3 contains a similar charge against Ian Ferguson and his wife, Joanne Ferguson (“Joanne Ferguson”), and Count 4 contains a similar charge against Sadler.

The first three accused, Cox, Sadler and Ian Ferguson, were former members of the then Victoria Police Drug Squad. The Crown alleges that they derived significant profits from the conspiracy charged in Count 1. It is those funds which are also the subject of Counts 2, 3 and 4 respectively. In support of its case the Crown proposes to call the evidence of a forensic accountant, Mr Gerard Curtin. Mr Curtin is a certified practising accountant who has been employed by Victoria Police in the investigation of fraud related offences since 1991. He has examined the financial accounts of Ian and Joanne Ferguson, of Cox and his wife Alexia, and of Sadler and his wife Carolyn. For those purposes he has treated each married couple as one separate unit. Mr Curtin’s analysis has involved matching deposits into those accounts with identified sources of income and other known cash in‑flows into the same accounts. Where Mr Curtin has been unable to identify a match, he has nominated the deposit into the account as…

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 (No 1)

Details

AGLC: R v Cox (No 1) [2005] VSC 157
Case: [2005] VSC 157
Decision Date: 16 May 2005

CaseChat Overview and Summary

The case of R v Cox (No 1) involved the defendant, Cox, who was charged with conspiracy to traffic heroin and money laundering. The dispute arose in the High Court of Australia, which was tasked with determining the admissibility of expert evidence provided by an accountant regarding the calculation of Cox’s “unsourced” cash payments and deposits. The central issue before the court was whether the expert’s calculations, which relied on certain assumptions, were admissible, given that the accountant had not explicitly stated those assumptions in their testimony.

The court had to decide whether the accountant was qualified to provide expert evidence on the matter, and if the underlying assumptions used in the calculations were appropriate for expert testimony. Furthermore, the court examined whether the failure to disclose these assumptions in the expert’s evidence affected its admissibility and reliability. The qualifications of the witness, including their expertise and the basis of their assumptions, were crucial in determining the admissibility of the evidence.

The High Court found that the expert was qualified to provide evidence on the calculations, but the failure to disclose the underlying assumptions compromised the reliability of the evidence. The court held that the assumptions were not proper subjects for expert evidence, as they were not based on established principles or facts but rather on the accountant’s professional judgment. Consequently, the expert evidence was deemed inadmissible due to the undisclosed assumptions. The court concluded that the expert’s qualifications alone were insufficient to validate the assumptions used in the calculations.

The final orders of the court were that the expert evidence provided by the accountant regarding Cox’s “unsourced” cash payments and deposits was inadmissible. The court’s decision underscored the importance of transparency in expert evidence, particularly when underlying assumptions are relied upon in the analysis.

Orders