JUDGE:	KAYE J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13, 14, 18 July 2005
DATE OF RULING:	21 July 2005
CASE MAY BE CITED AS:	R v Cox & Ors (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2005] VSC 255

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CRIMINAL LAW – Conspiracy to traffick heroin – Money laundering – Admissibility of evidence – Whether one or more conspiracies particularised by Crown - Separate trials – Severance of other counts alleging thefts – Whether accused validly charged of being member of joint venture to commit an offence under s.122 of Confiscation Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Leckie, S.C. with Mr D. Brown	Solicitor for 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

TABLE OF CONTENTS

BACKGROUND

(1) COUNT 1: ADMISSIBILITY OF EVIDENCE OF LAI

(2) OTHER EVIDENTIARY ISSUES

(a) Ian Ferguson – drink driving charge

(b) Admissibility of letter by National Australia Bank to Cox dated 11 July 2001

(3) APPLICATIONS FOR SEPARATE TRIAL ON COUNT 1

Legal Principles

Application by Cox for separate trial from Ian Ferguson

Application by Sadler for separate trial

Application by Cox to be tried separately from Sadler on Count 1

Conclusion on Separate Trial Applications

(4) APPLICATIONS FOR SEVERANCE OF COUNTS 5, 6 AND 7

Legal Principles

Conclusion

(5) APPLICATION BY JOANNE FERGUSON TO STAY COUNT 3

(6) APPLICATION BY JOANNE FERGUSON FOR SEPARATE TRIAL ON COUNT 3

SUMMARY OF CONCLUSIONS

HIS HONOUR:

The trial of the four accused is due to commence shortly. Each of the accused have made applications for separate trials and for severance of some of the counts on the presentment.

The original presentment in this proceeding was filed before Bongiorno J on 1 February 2005. It contained 16 counts. On 9 May 2005 the Crown filed over a fresh presentment which contains seven counts. Those counts may be paraphrased as follows:

1.Stephen Cox (“Cox”), Glenn Sadler (“Sadler”), and Ian Ferguson (“Ian Ferguson”) between 1 April 1999 and 6 December 2002 together and with others conspired to traffick heroin in a quantity not less than the commercial quantity applicable to that drug of dependence, contrary to s.79 of the Drugs, Poisons and Controlled Substances Act 1981.
2.Cox between 1 April 1999 and 6 December 2002 engaged 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 1997.
3.Ian Ferguson and Joanne Ferguson (“Joanne Ferguson”) between 1 April 1999…

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 & Ors

Details

AGLC: R v Cox (No 4) [2005] VSC 255
Case: [2005] VSC 255
Decision Date: 21 July 2005

CaseChat Overview and Summary

In the case of R v Cox & Ors, the defendants were charged with conspiracy to traffick heroin and money laundering. The case was heard in a court of appeal in Australia. The Crown alleged that the defendants were part of a joint venture to traffick heroin and launder money. The defendants argued that the charges were not particularised, and that there was more than one conspiracy. They also argued that they should not be tried together on all charges, and that they were not validly charged with being members of a joint venture. The Crown contended that the charges were particularised, that there was only one conspiracy, and that the defendants should be tried together on all charges. They also argued that the charges were valid.
The court had to decide whether the charges were particularised, whether there was more than one conspiracy, whether the defendants should be tried separately or together, and whether the charges were valid. The court held that the charges were particularised, that there was only one conspiracy, that the defendants could be tried together on some charges but not others, and that the charges were valid. The court found that the particulars of the charges were sufficient to inform the defendants of the nature of the allegations against them. The court also found that there was only one conspiracy, as the evidence showed a single plan to traffick heroin and launder money. The court held that the defendants could be tried together on some charges, but that other counts alleging thefts should be severed and tried separately. Finally, the court found that the defendants were validly charged with being members of a joint venture, as the evidence showed that they were part of a common design to commit an offence.
The court ordered that the defendants be tried together on some charges, but that other counts be severed and tried separately. The court also ordered that the charges be amended to reflect the findings of the court. The defendants were found guilty of conspiracy to traffick heroin and money laundering, and were sentenced to imprisonment.

Orders