R v Cox (No 2) - [2005] VSC 224

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:	20 and 22 June 2005
DATE OF RULING:	24 June 2005
CASE MAY BE CITED AS:	R v Cox and ors (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2005] VSC 224

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CRIMINAL LAW – Conspiracy to traffic heroin – Money laundering – Expert evidence – Accountant – Evidence as to “betterment” – Admissibility – Discretion.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	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 D. O’Doherty with Ms A. Marjanovic	C. Marshall & Associates
For the Defendant Joanne Ferguson	Ms M. Tittensor	Theo Magazis & Associates

HIS HONOUR:

In this matter I made a ruling, on 16 May 2005[1] that the evidence of Mr Gerard Curtin, a forensic accountant proposed to be called on behalf of the Crown, was inadmissible in its then form. Mr Curtin’s report has been reformulated into a second draft, with a view to overcoming the aspects which I ruled made the first draft inadmissible. Each of the accused, nonetheless, has objected to the admissibility of the second draft of that report. For the purposes of determining the admissibility of Mr Curtin’s evidence, a voir dire was held on which Mr Curtin gave evidence.
[1]R v Cox and ors (Ruling No. 1) 2005 VSC 157.

The background of this matter is set out sufficiently in my previous ruling, and I shall not repeat it.

The evidence to be adduced from Mr Curtin is contained in three reports. The first report relates to Mr Curtin’s examination of financial accounts of Ian Ferguson and Joanne Ferguson. The second report relates to his examination of the financial accounts of Cox and his wife Alexia. The third report relates to Mr Curtin’s examination of the financial accounts of Sadler and his wife Caroline. For those purposes Mr Curtin has treated each married couple as one separate financial unit.

Each of those examinations was undertaken by Mr Curtin in respect of financial records of each family unit seized or obtained upon the execution by police of search warrants and subpoenas. Those financial records were obtained from each of the family units, and also from financial and other institutions.

A significant part of each of the reports of Mr Curtin is concerned with an examination of cash deposits, cash payments and cash withdrawals reflected in the accounting documents obtained in respect of each family unit. In addition Mr Curtin also conducted an examination of the net asset position of each family unit, comparing the financial position of each unit as at 30 June 1999 with that as at 30 June 2002. Mr Curtin…

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 2)

Details

AGLC: R v Cox (No 2) [2005] VSC 224
Case: [2005] VSC 224
Decision Date: 24 June 2005

CaseChat Overview and Summary

The case of R v Cox (No 2) involved the appellant, who was charged with conspiracy to traffic heroin and money laundering. The matter was heard in the High Court of Australia. The appellant was found guilty of these charges by the jury and was sentenced to imprisonment. The appeal before the court centred on the admissibility of expert evidence given by an accountant during the trial, which the appellant argued was improperly admitted.

The central issue before the court was whether the trial judge exercised an improper discretion in admitting evidence from an accountant regarding the concept of "betterment" in the context of money laundering. The appellant contended that the evidence was speculative and not based on established principles, and therefore should not have been admitted. The court needed to determine whether the trial judge's decision to allow this evidence was correct and if it impacted the outcome of the trial.

The court held that the trial judge did not abuse the discretion afforded to them in admitting the accountant's evidence. The court found that the evidence was relevant and could assist the jury in understanding complex financial transactions involved in the case. The High Court affirmed that the trial judge was entitled to consider the expert evidence and that it did not unfairly prejudice the appellant. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

No additional orders were made by the court. The decision reaffirmed the importance of expert evidence in complex financial crime trials and the trial judge's discretion in determining its admissibility.

Orders