R v Cox (No 5)
[2005] VSC 262
•27 July 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN | Plaintiff |
| v | |
| STEPHEN COX, GLENN SADLER, IAN FERGUSON AND JOANNE FERGUSON | Defendant |
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JUDGE: | KAYE J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 26 July 2005 | |
DATE OF RULING: | 27 July 2005 | |
CASE MAY BE CITED AS: | R v Cox and ors (Ruling No. 5) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 262 | |
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CRIMINAL LAW – Separate trials – Order in which trials to take place.
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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:
On 21 July 2005 I ruled[1] that the charge of conspiracy in Count 1 of the presentment be tried jointly against the first and second accused, Stephen Cox and Glenn Sadler, but separately to the charge of conspiracy in Count 1 against the third accused, Ian Ferguson. I also ruled that the three counts of theft – Counts 5,6 and 7 – be tried separately from Count 1, and from each other.
[1]R v Cox and ors (Ruling No. 4) [2005] VSC 255R.
The Crown wishes to proceed first with the trial of the charges of conspiracy in Count 1, before proceeding with the charges of theft in Counts 5, 6 and 7. That course is not opposed by any of the other parties, and would seem to me to be the appropriate course by which to proceed in these trials.
Pursuant to my earlier ruling, the charge of conspiracy against Cox and Sadler in Count 1 will be tried at the same time as the money laundering charges against Cox and Sadler in Counts 2 and 4 of the presentment. Similarly, the charge of conspiracy against Ian Ferguson in Count 1 will be tried at the same time as the money laundering charge in Count 3 against Ian Ferguson and the fourth accused, Joanne Ferguson.
The issue which now arises concerns the order in which the trials of the conspiracy and money laundering charges are to proceed. The Crown proposes that the trial of the charge against Ian Ferguson in Count 1, and of the charges against Ian Ferguson and Joanne Ferguson in Count 3, proceed first, and before the trial of the charges against Cox and Sadler in Counts 1, 2 and 4. That proposal is supported by both Cox and Sadler. However, it is opposed by Ian Ferguson and Joanne Ferguson.
Mr Young, who appears on behalf of Cox, submitted that the course proposed by the Crown is appropriate. His principal submission was that, if the case against Ian Ferguson in Count 1 proceeded first, and if Ferguson were acquitted on that count, the Crown would need to give serious consideration whether to proceed against Cox on Count 1 (and thus on Count 2). Mr Georgiou, who appears with Ms Spowart on behalf of Sadler, supported the submissions of Mr Young, contending that the same reasoning also applies to his client.
Initially, Mr O’Doherty, who appears with Ms Marjanovic for Ian Ferguson, foreshadowed that, if the trial of the presentment against his client proceeded first, he would need an adjournment, as he is not adequately prepared for that trial. Both Mr O’Doherty, and also Ms Tittensor who appears on behalf of Joanne Ferguson, have come into this matter quite recently, and it is therefore understandable that they would not be ready to proceed if the trial were to commence shortly. However, as it transpires, the matter is not ready to proceed for the next two months in any event. Mr Leckie SC, who appears with Mr Brown on behalf of the Crown, has announced that he is obliged to withdraw from the trial. He is to be replaced by Mr M. Tovey QC. In that event the first trial – whether of Cox and Sadler, or of Ian and Joanne Ferguson – would not be ready to commence until 21 September 2005. I understand that that delay will be sufficient to enable counsel for Ian Ferguson and Joanne Ferguson to prepare their cases, should the trial against their clients be heard first.
Mr O’Doherty then contended that the trial of Cox and Sadler should proceed first and before the trial of his client, on the grounds that Ian Ferguson may wish to call Sadler as a witness on his own trial. Mr O’Doherty submitted that Mr Sadler would be unwilling to give evidence as to the matters sought to be adduced from him, unless the trial of him on Count 1 had been completed.
Mr O’Doherty submitted that his client particularly wishes to call Mr Sadler in relation to one aspect of the case, which concerns the acquisition by Sadler of a Toyota Landcruiser from Geelong City Toyota in November 2000. The Crown case concerning that transaction is based substantially on the evidence of Mr Jason Flynn, who was an employee of Geelong City Toyota.[2] On 1 July 2000, Flynn, on behalf of Geelong City Toyota, sold a Landcruiser motor vehicle to Ian Ferguson for the sum of $64,700. Ferguson paid a deposit of $10,000 in cash. He paid the balance of the purchase price on 10 September 2000, by payment of a Bank of Melbourne cheque in the sum of $25,000, and a further sum of $29,000 in cash. Subsequently, on 3 November 2000, Ferguson and Sadler attended the dealership again. Sadler entered into a contract with Geelong City Toyota to purchase a Landcruiser for the sum of $58,734. The purchase was in the name of his wife, Caroline Sadler. Ferguson left the premises and Sadler remained there. When Ferguson returned, he had a cheque drawn on the joint account of Joanne and Ian Ferguson with the Bank of Melbourne in the sum of $58,734 as payment for the vehicle. The vehicle was then delivered to the premises of Sadler. The Crown case is that Ferguson was the source of the funds for the purchase of the vehicle, and that the funds were the proceeds of the conspiracy between Ferguson and Sadler to traffick heroin as alleged in Count 1 of the presentment.
[2]Depositions p.3570.
Mr O’Doherty submitted that Ferguson may wish to call Sadler to give evidence as to the source of the funds used to purchase the Landcruiser in the name of Caroline Sadler. In particular Mr O’Doherty submitted that on his instructions, Sadler may be able to give evidence as to transactions which occurred subsequent to 3 November 2000, and which, as I understood it, constituted an accounting between Sadler and Ferguson in respect of the purchase price of the vehicle. Mr O’Doherty submitted that, unless the trial of Sadler on Count 1 was already completed, Sadler would be unwilling to give evidence concerning that transaction. Thus he submitted it is in the interests of justice that the trial of Cox and Sadler proceed first.
In support of his submissions Mr O’Doherty referred me to the decision of Hampel J in R v Brown.[3] In that case four promoters of a tax scheme and Mr Neil Forsyth QC were charged jointly with conspiracy to defraud the Commonwealth by promoting and implementing a scheme to evade the payment of income tax. Hampel J ordered that Mr Forsyth be tried separately from the four promoters. The Crown proposed proceeding first against the promoters, and then against Forsyth. Both Forsyth and the promoters opposed that course, and submitted that the trial of Forsyth should precede the trial of the promoters. The promoters contended that they wished to call Mr Forsyth at their own trial to give evidence on their behalf, and in particular to give evidence that they acted on tax advices given by him as an independent, eminent and expert tax lawyer. They pointed out that Forsyth would, understandably, be unwilling to give evidence unless the trial against him was concluded. Hampel J upheld the submissions made on behalf of the promoters and Forsyth and ordered that the trial of Forsyth should precede the trial of the promoters. His Honour considered that the desire of the promoters to call Forsyth was not so “unrealistic and remote” that their application to postpone their trial until Forsyth had been tried was a mere tactical ploy.[4]
[3][1990] VR 820.
[4]Above at 828.
Legal Principles
It would seem that, in Brown’s case, Hampel J applied principles which were applicable to an application by an accused to stay the trial of a criminal proceeding on the grounds that it is an abuse of the process of the court. Thus, in observing that a trial judge has power to control the court processes “to meet the demands of the administration of justice”,[5] Hampel J referred to the observations of the High Court in Jago v District Court of New South Wales.[6] That case concerned an application for a stay of a trial against an accused man on the basis of substantial delay which would prejudice the trial of the proceeding against him. The High Court considered the court’s jurisdiction to grant a stay in such circumstances. In essence the High Court held that a court has an inherent power to prevent its processes being used to bring about an injustice. Thus, Mason CJ observed:
“The continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in R v Derby Crown Court; ex parte Brooks.[7] If the distinction matters, I would prefer to regard the power as an incident of the general power of a court to ensure fairness.”[8]
[5]p.827.
[6](1989) 168 CLR 23.
[7](1984) 80 Cr App R 164.
[8]Above at 30-31; see also at 49 (Brennan J).
In Jago, Mason CJ noted that the test of fairness to be applied “ … involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial.”[9] His Honour referred, inter alia, to R v Barton.[10] There Gibbs ACJ and Mason J, in their joint judgment, stated:
“At this stage it is sufficient to say that the Supreme Court has power to stay proceedings on the information until a preliminary examination takes place. Whether such a stay should be granted depends upon a weighing up of the relevant interests which are at stake – on the one hand, the accuseds’ interest in obtaining a fair trial, and on the other hand, the Crown’s interest in bringing the accused to trial on serious charges which will require to be proved by the testimony of overseas witnesses.”[11]
[9]Above at p.33.
[10](1980) 147 CLR 75.
[11]p.102.
The same principles were recently applied by King J in her Honour’s ruling in R v Williams.[12] In that case the accused has been charged with four murders, which have been charged on three separate presentments. The Crown proposes to proceed with the presentment which was first laid against the accused. The accused sought a stay of that proceeding until the murder, the subject of a later presentment, is first tried against him. King J rejected the application for a stay, applying the principles to which I have just referred. Her Honour observed:
“ … the Court is required to balance the interests of the Crown acting on behalf of the community and the interests of the accused to determine whether a trial of the Michael Marshall murder as the first trial would be unfair when judged by the standards that have been referred to in Jago v The District Court (NSW).”[13]
[12]Unreported, Supreme Court of Victoria, 8-7-05.
[13]Transcript p.68.
Conclusion
The decision by the Crown that the trial of Ian and Joanne Ferguson should precede the trial of Cox and Sadler was a decision in the exercise by the Crown of its discretion as prosecutor. There is no suggestion that the Crown, in the exercise of that discretion, was seeking to achieve an unfair or improper advantage, or that the Crown has exercised the discretion based on any inappropriate consideration.
Further, there is, in my view, substantial force in the proposition that the stronger Crown case should be heard first. As both Mr Young and Mr Georgiou submitted, if Ferguson is acquitted on Count 1, there is a realistic possibility that the Crown may not proceed against Cox and Sadler on that count or on the associated money laundering counts. In my previous ruling I expressed the view that, on the materials contained in the depositions, the case against Ian Ferguson is considerably stronger than against Cox.[14] I also expressed the view that the Crown case against Ian Ferguson is stronger than against Sadler, but not to the same degree to which the evidence is stronger against Ferguson than against Cox.[15] In those circumstances, if Ferguson is tried first and acquitted on Count 1, it is quite conceivable that the Crown would give serious consideration to proceeding against Cox and Sadler on Count 1.
[14][2005] VSC 225R at para 93.
[15]Para 107.
Such a consideration was a relevant factor in the decision of King J in Williams to reject the application for a stay. As her Honour observed:
“There is a genuine public interest in trials in this Court and any court being run in the most expeditious and economical manner. … To force the Crown to proceed with a matter that they ultimately may not proceed with at all cannot be in the public interest.”[16]
[16]Transcript p.72.
Thus the interests of justice must also encompass the interests of Cox and Sadler, as well as those of Ian and Joanne Ferguson. Cox and Sadler have an interest in the trial of Ferguson proceeding first, so that they do not face trial on a count on which it may transpire they may not, ultimately, have been presented. Further the course proposed by the Crown is supported by a legitimate public interest of the type adverted to by King J in Williams case, namely the interest in the economical and practical disposition of criminal trials each of which are anticipated to last for some time.
As against this, Mr O’Doherty submitted that it would be unfair and unjust for the trial against his client to proceed first, since that course would deprive Ferguson of the opportunity of calling Sadler to give evidence explaining the source of the funds used to purchase the Toyota Landcruiser in the name of Mrs Sadler. Mr O’Doherty was not in a position, however, to indicate just what Mr Sadler would or might say if called to give evidence. At most he could state that, consistent with his instructions, there was an expectation that Sadler might give an explanation which might refute the suggestion by the Crown that the Toyota Landcruiser was purchased by Ian Ferguson for Sadler out of the proceeds of the drug trafficking in which they were both involved, and as part of Sadler’s share of the profits of the conspiracy.
The difficulty confronting Mr O’Doherty is, it seems to me, that it is a matter of substantial speculation as to whether Sadler would give evidence which might advantage Ferguson, even if he was willing to do so. As I have pointed out, there is no indication what Sadler might say if he is called as a witness. The Crown is in the position to prove that the purchase moneys for the Toyota Landcruiser were sourced from the Bank of Melbourne account of Ian and Joanne Ferguson. On the same day (3 November) a deposit of $41,083 was made into that account. Of that sum $40,000 comprised cash. Mr Leckie pointed out that there is no legitimate withdrawal from any account of Mr Sadler, or from his casino winnings, which would account for the purchase price of the Toyota Landcruiser. Further, no explanation is readily apparent as to why Sadler would fund Ferguson to purchase a Landcruiser in the name of Mrs Sadler. Certainly there does not appear to be any manifest tax advantage in structuring the transaction in that manner.
In addition, as pointed out by Mr Leckie, the interests of Ferguson and Sadler may not reside in their giving consistent accounts as to the funding of the purchase price of the Landcruiser. On the one hand, Mr Ferguson may well wish to establish that it was Sadler who was the source of the funds which accounted for the purchase price of the Landcruiser. On the other hand, such a proposition may not be in Sadler’s interest. If it was Sadler who did supply the purchase price of the Landcruiser, then he would need to explain how it was that he was in possession of such a large amount of money. The Crown case against Sadler, based on the “betterment” evidence of the expert Mr Curtin, is that Sadler was in receipt of funds in his accounts the source of which cannot be identified, and that he also was involved in cash purchase transactions from funds the source of which cannot be traced to his own accounts. Curtin’s report concludes that Sadler, during the period relevant to the conspiracy charged in Count 1, can be shown to have $170,000 of such unsourced payments and receipts. Part of Curtin’s evidence is based on the assumption that it was Sadler who, ultimately, was the source of the funds for the Landcruiser. If Sadler is able to disprove that part of Curtin’s evidence, then the “betterment” evidence against him would reduce. Thus, it is by no means clear that Ferguson and Sadler would wish to give a common explanation for the source of the funds of the purchase price of the Landcruiser which was acquired in the name of Mrs Sadler.
Accordingly, it is not readily apparent that Sadler, if willing to be called to give evidence on behalf of Ferguson, would give evidence which might assist Ferguson. On the contrary, it is at most a matter of substantial conjecture whether Sadler would do so. In addition, as pointed out by Mr Georgiou, even if the trial of Sadler were to precede the trial of Ferguson, it is conceivable that Sadler might nonetheless invoke the privilege against self‑incrimination should he be called to give evidence in support of Ferguson upon his trial.
In this respect this case is somewhat different, and distinguishable, from R v Brown (above). In that case, there were sound grounds upon which the promoters might expect that Forsyth would give evidence which would assist the case of the promoters, if he were called to do so upon their trial. It was central to the defence of the promoters that they relied and acted on Forsyth’s professional advice as that of a reputable and eminent barrister, who was an expert in the area of revenue law. Similarly, it might be fairly anticipated that, upon his trial, Forsyth’s defence would have been that he was, at all times, acting as an independent and senior barrister expert in taxation law giving advice, at arm’s length, in the ordinary course of his professional practice. Thus it was possible to readily discern that, if Forsyth were called as a witness , he would give evidence which might support the case of the promoters. By contrast, for the reasons which I have set out above, I do not consider it more than a matter of speculation as to whether, if called, Sadler would or could give evidence which might assist Ferguson in his trial.
In the end, the exercise to be performed by me is a balancing exercise, weighing the competing interests of each of the parties. Of necessity, the interests of Cox and Sadler are relevant to the outcome of that equation. Their interests clearly lie, in my view, in the trial of Ferguson preceding their trial. That interest is based on the realistic expectation that if Ferguson is tried first and acquitted on Count 1, then the Crown may well consider whether to proceed on that count against them. That interest is also coterminous with that of the Crown, and with the public interest, in the prosecution of the stronger Crown case first. On the other hand, the matters relied on by Ian and Joanne Ferguson are speculative. There is no cogent interest established by them in having the trial of Cox and Sadler proceed first. In those circumstances the interests of justice do not weigh in favour of making an order contrary to the election of the Crown, that the trial of Ferguson be postponed until the completion of the trial of Cox and Sadler. On the contrary, the interests of justice support the course of action proposed by the Crown, namely, that the trial of Ian and Joanne Ferguson proceed first.
Ms Tittensor, who appears on behalf of the fourth accused Joanne Ferguson, submitted that the Crown case against her client was weaker than against any of the other three accused, and for that reason should proceed last. However, the first issue which must be established against Joanne Ferguson, on Count 3 of the presentment, is that the funds which are the subject of the transactions alleged against her were the proceeds of the criminal conduct of her husband, Ian Ferguson. Thus the Crown case, on that issue, against Joanne Ferguson, is identical to the Crown case against Ian Ferguson on Count 1 of the presentment. As I have already stated, the Crown case, on that issue, is substantially stronger against Ian Ferguson than against either Cox or Sadler.
The outcome of the foregoing is that I am not persuaded to exercise my discretion to direct that the trial of Cox and Sadler on Counts 1, 2 and 4 proceed before the trial of Ian and Joanne Ferguson on Counts 1 and 3. Accordingly, the trial of Ian and Joanne Ferguson on Counts 1 and 3 of the presentment will precede the trial of Cox and Sadler on Counts 1, 2 and 4 of the presentment.
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