R v Cox & Sadler (No 13)
[2006] VSC 336
•7 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| STEPHEN COX AND GLENN SADLER |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 7 July 2006 | |
CASE MAY BE CITED AS: | R v Cox and Sadler (Ruling No. 13) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 336 | |
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CRIMINAL LAW – Conspiracy to traffick heroin – application by accused to discharge jury – media publication – submissions by Crown Prosecutor in final address.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Tovey, QC with Mr D. Brown | Solicitor for the Office of Public Prosecutions |
| For the First Defendant | Mr B. Young | Tony Hargreaves & Partners |
| For the Second Defendant | Mr G. Georgiou with Ms H. Spowart | Victoria Legal Aid |
HIS HONOUR:
Application has been made on behalf of the second accused, Mr Sadler, to discharge the jury in the trial against him. In support of that application, Mr Georgiou has relied on two matters. First, and principally, Mr Georgiou has referred to submissions made by Mr Tovey of Queen’s Counsel in his final address on behalf of the Crown at the end of proceedings on 5 July concerning a matter which might be referred to as “the Perdicaris issue”. Secondly, Mr Georgiou has referred to an article published in an edition of the Herald Sun newspaper on 6 July and a segment of the AM program broadcast on radio station 774 at about eight o’clock on 6 July.
Mr Young, who appears for the co‑accused Mr Cox, has not made any application to discharge the jury on either basis. However, in the course of legal argument before me, he submitted that I should direct the jury to disregard certain matters advanced by Mr Tovey in relation to the Perdicaris issue.
The jury in this trial was empanelled on 9 March. Openings to the jury commenced on 15 March. The evidence in the trial has now completed. Mr Tovey commenced his final address on 30 June and his address has so far proceeded for in excess of three‑and‑a‑half days.
The first basis argued by Mr Georgiou arises from a report by Select Investigation Services Pty Ltd to Mr Alan Singer dated 1 May 2000, which is a document tendered in evidence on behalf of Mr Cox.
Mr Cox was, in May 2000, a director of Select Investigation Services. In April and May, Mr Singer engaged that company to search for his computer which had been stolen from his motor vehicle while it was parked in a car park off King Street. Mr Singer was called to give evidence on behalf of Mr Cox and in the course of his testimony a bundle of reports provided to him by Select Investigation Services were tendered as Exhibit SC 64. The report of 1 May 2000 was one of those reports.
The Crown had opposed the tender of those documents on the basis that they constituted hearsay. However, on 23 June I ruled that the documents could be tendered on behalf of Mr Cox in order to demonstrate the scope and nature of the retainer of Select Investigation Services by Mr Singer, but not for the truth of their contents. It is, of course, trite law that although a document might be admitted during the evidence of one party for a limited purpose, the opposing side (and here the Crown) is entitled to use it for any other legitimate purpose. Mr Young has accepted that the documents can be used against his client for the truth of their contents, but he has submitted to me that the Crown is only entitled to use them in a more limited manner than that in which they were used in Mr Tovey’s address.
The report of Select Investigation Services purports to be a summary of tasks performed separately by investigators. The section to which Mr Tovey made mention referred to an operative of Select Investigation Services, Mr Peter Lowe. The report indicates that he attended at Secure Parking in Flinders Street, Melbourne and conducted surveillance there; and that a male person, namely Joseph Perdicaris, was observed by a parking attendant to be leaving the car park area and acting in a strange manner. The report then says:
“Detective Senior Constable Sadler and Ferguson attended scene and interviewed Joseph Perdicaris of 132 Holmes Road, Moonee Ponds. Perdicaris’s car, a blue Holden sedan registered number NQJ‑970, was searched and nil located. Perdicaris was affected by alcohol and other drugs. Sadler advised Cox follow‑up interview should be made with Perdicaris. Static surveillance continued to ‑ nil other activity and return to office.”
Mr Tovey referred to that document at pp.5781 and following in the course of his submissions to the jury on Wednesday. He referred to the features of the document which I have just described. He submitted to the jury that there was no indication that Perdicaris was a drug trafficker and he submitted that thus the attendance of Mr Ferguson and Sadler at the car park was in respect of a private investigation undertaken by Select Investigation Services. Mr Tovey submitted to the jury that that constituted an abuse by Mr Sadler and Mr Ferguson of their powers as police officers. He said that they knew that it was illegitimate for them to have attended and they knew it was so illegitimate because they had lied about it in their diaries.
Mr Tovey then proceeded as follows at the foot of p.5782:
“What is the point of all this? The point of all this is just to show how far Ferguson and Sadler were in the pocket of Cox. These people, they are like peas in a pod, they are as thick as thieves. And here you are, you see that Ferguson and Sadler have not the slightest hesitation. Getting a call from Select Investigation Services, they fabricate their diaries, go out, abuse their powers. Why? To help out their pal, Mr Cox. That is the nature of the association between them. The reason I make that point is because it is inconceivable that Mr Cox particularly did not know ‑ did not know ‑ precisely how it was that both Mr Sadler and Mr Ferguson were getting wealthier by the minute, in spades.”
Mr Tovey then took the jury through the parts in the diary which he submitted to them were fabricated and completed his submissions on this aspect as follows (at p.5784):
“And it is impossible, I would suggest to you, to have it demonstrated more eloquently or more directly how much each of these men was in the pockets of the other and how prepared at least Ferguson and Sadler were to fabricate their diaries at the drop of a hat to avoid being detected being involved in improper or illicit activity.”
Mr Georgiou has submitted to me that the report of Select Investigation Services of 1 May is not admissible against his client, Mr Sadler, in respect of the truth of its contents. It is submitted to me that the document as against his client is hearsay. Thus the document and the matters raised by Mr Tovey could not be used against Mr Sadler. He submitted, therefore, that the arguments made by Mr Tovey were without any evidential foundation and should not have been made against his client.
Mr Georgiou further submitted to me that the arguments so made by Mr Tovey were highly prejudicial to the fair trial of the case against his client. The submissions were made at the end of the day and, he said, the jury were left with them ringing in their ears. They were put with significant force, using strong and colourful language. Further, he submitted, it is relevant to note that the Crown does allege in other aspects of the case fabrication of the diaries particularly in relation to referring to non‑existing informers.
Mr Georgiou has also drawn my attention to the Herald Sun article on 6 July. That article appeared on pp.1 and 4 of that edition of the Herald Sun under the heading “Dramatic Swoop at Police HQ”. The first page of the article referred to a raid on the Armed Offenders Squad by members of the Office of Police Integrity. Page 4 continued with the description of that raid. However, at the conclusion of the article the writer then referred by way of background to an interview which had been conducted with the Director of the Office of Police Integrity, Mr George Brouwer, in November last year. In the course of doing so, the article stated that Mr Brouwer identified a number of features which he, Mr Brouwer, said were aspects of convincing evidence that his office had uncovered in relation to police corruption. Those aspects included, firstly, drug dealing and giving the green light to other dealers and, secondly, corrupt associations with private investigators and security industry staff.
Mr Georgiou also referred to a segment of the AM program published on radio station 774 yesterday morning. That segment arose from an interview by the reporter, Ms Taylor, with the Deputy Director of the Office of Police Investigations, Mr Ashton. Towards the end of the segment Ms Taylor stated words to the effect:
“This isn’t the first Victorian police crime squad to face allegations of entrenched corrupt behaviour. The Drug Squad was completely scrapped and reformed five years ago in an effort to clean up its reputation and Graham Ashton says the OPI will be recommending the Police Chief Commissioner do the same in this case.”
Mr Georgiou’s main submission about those two publications were that they gave point to the complaint which he makes about Mr Tovey’s address relating to the Perdicaris matter. He said that the timing of the submissions by Mr Tovey, coinciding with those two publications, have caused irreparable prejudice to his client’s case.
Mr Young submitted that it was not permissible for the Crown to use the Select Investigation Services report of 1 May 2000 in the manner outlined by Mr Tovey. He submitted that the report could only be used against his client in a more restricted manner, namely that in the course of the investigation by Select Investigation Services conducted on behalf of Mr Singer, Mr Sadler and Mr Ferguson attended at King Street and spoke to Perdicaris and searched his vehicle, and that Mr Sadler spoke to Mr Cox and advised him that a follow‑up interview with Mr Perdicaris should be conducted.
Mr Young submitted that the Crown should only be entitled to submit from those facts that Sadler and Ferguson were doing the work of Select Investigation Services on 1 May and in doing so had reported to Cox. Mr Young accepted that, used in that way, the Select Investigation Services report is relevant to the relationship between his client and Sadler and Ferguson. However, he submitted that the Crown was not entitled to allege against his client, Mr Cox, that the relationship involved, firstly, an abuse of police power by Ferguson and Sadler and, secondly, the falsification of police diaries by Ferguson and Sadler.
At the commencement of his submissions, Mr Tovey told me that he does not concede that he is not entitled to rely on the Select Investigation Services report against Mr Sadler for the truth of its contents. He expressly reserved his right to contend that it is admissible against Mr Sadler for that purpose. However, he also informed me that for the purposes of argument, and also for the purposes of summarising that argument to the jury, he does not seek to use it for that purpose against Mr Sadler in this trial.
Mr Tovey then made the following submissions to me. Firstly, he submitted to me that those who were acting for Mr Sadler had had ample warning that he intended to use the Select Investigation Services report of 1 May for the truth of its contents, not just against Mr Cox but also against Mr Sadler. However, the representatives of Mr Sadler had refrained from objecting to its use for that purpose until yesterday. Secondly, he submitted that the argument which he has made is one which he is entitled to make against Mr Cox. Therefore, he submitted, there is no prejudice occasioned to Mr Sadler because, even if he had told the jury that that argument only related to the case against Mr Cox, he would have been entitled to make the identical argument against Mr Cox, which he did indeed make. In those circumstances Mr Tovey submitted that his use of that argument against Mr Sadler also can be simply corrected by a direction by me to the jury that the point made by Mr Tovey could only be made against Mr Cox. Thirdly, Mr Tovey submitted to me that if that submission of his is not upheld, and if the Crown was not entitled to use the report in a manner other than that contended by Mr Young, any prejudice flowing to Mr Sadler could be sufficiently allayed by an appropriate direction by me to the jury. Fourthly, Mr Tovey submitted to me that the observations made in the media and particularly in the Herald Sun were of a general nature; by and large, they repeated the type of allegation which not uncommonly arises in respect of police corruption. He submitted to me that any concern about the effect of the two publications can be sufficiently arrested by a repetition by me of the direction which I have already given to them, namely that they must ignore what they read in the media and focus solely on the evidence in the trial.
The first question which I need to determine concerns what use the Crown might legitimately make of the Select Investigation Services report of 1 May 2000. Mr Tovey has, as I have said, accepted that for the purposes of this application that report may not be used against Mr Sadler. As I have already stated, he has expressly reserved his right to argue that, nonetheless, the document was admissible for that purpose against Mr Sadler. In those circumstances, if I do not decide to discharge the jury against Mr Sadler, I would as a minimum need to direct the jury that the matters contended for by Mr Tovey could only relate to the trial against Mr Cox and not the trial against Mr Sadler.
The question, then, is whether the Crown was entitled to make these submissions to the jury against Mr Cox which Mr Tovey has made. In particular, the question is whether I should rule that the Crown should be confined in its use of the Select Investigation Services report against Mr Cox in the manner contended for by Mr Young. In order to determine that question, it is important to identify the issues in the trial.
The two accused men are charged with conspiring together, and with Ferguson, to traffic heroin between April 99 and November 2002. Mr Cox left the Drug Squad in early 2000. Mr Sadler and Mr Ferguson remained in that Drug Squad for some time. As part of the proof of the ongoing conspiracy, it is common ground that the Crown is entitled to establish that after Mr Cox left the police force, he nonetheless continued to have a close personal relationship with Ferguson and Sadler. Further, the Crown was, in my view, entitled to prove against Mr Cox the nature of that relationship. Thus it was permissible to prove, for example, that on 1 May Ferguson and Sadler were, as members of the Drug Squad, prepared to assist Select Investigation Services in the investigation of the theft of Singer’s laptop computer. Indeed, none of those propositions are, as I understand it, gainsaid by Mr Young.
The question is whether the Crown is also entitled to contend against Cox that Ferguson and Sadler were prepared to abuse their powers as policemen and, in doing so, to falsify their diaries in order to conceal their involvement in that abuse of power.
Mr Young has submitted to me that those two matters are not relevant to the issues between Cox and the Crown, namely whether Cox was in a corrupt relationship with Sadler and Ferguson to traffic heroin. He contended that the proof of the fabrication of diaries and the allegation of abuse of power by Ferguson and Sadler was too remote from that issue to be properly characterised as relevant to it.
Questions of legal relevance generally involve issues of degree. They need to be determined in the light of the issues in the trial. In this trial, of course, there is one central issue, namely the existence of the conspiracy. There are also a multiplicity of factual issues which underlie that principal issue. However, it is important to bear in mind that not all facts which may be remotely logically relevant to an underlying issue are necessarily relevant at law. It is well recognised that evidence which, as a matter of logic, may be relevant, may nonetheless be excluded as irrelevant because its weight is so minimal that it does not add to or detract from the probability of the fact. (Cf, for example, R v Stevenson;[1] R v Stojkovic.)[2]
[1][1976] VR 376 at 379‑381.
[2][2004] VSCA 84 at para.24.
In the present case the matters which have been objected to by Mr Young, namely the allegations of falsification of diaries and of abuse of power, are well remote from the central issue in the trial, namely the existence of the conspiracy. They may, to some extent, bear on the underlying issue as to the nature of the ongoing personal relationship between Cox, Sadler and Ferguson. However, in my view, they are not facts which are probative of the features of that relationship which are relevant to, and admissible for, the purposes of establishing the conspiracy. It is relevant and permissible for the Crown to prove that the relationship was so close between Cox, Sadler and Ferguson that Ferguson and Sadler as policemen attended to the work of Select Investigation Services of which Cox was then a director notwithstanding that that work, on its face, was not within the scope of their duties as members of the Drug Squad. It is, however, another matter to prove that that relationship was, in that sense, corrupt or an abuse of power. In my view, the allegations of falsification of diaries and abuse of power are, at best, peripherally connected to the allegation that Ferguson and Sadler did work for Cox’s company which was outside the scope of their duties as members of the Drug Squad. In the context of the underlying issue, namely the proof of a close personal ongoing relationship, the allegation of falsification of diaries and abuse of police powers lies, at the very best, at the outer margins of relevance. In the context of the central issue, the existence of the conspiracy alleged by the Crown, those allegations are, in my view, too remote to be properly regarded as relevant at law to the issues which are properly before the jury.
Therefore, as against Mr Cox, I intend to direct the jury that they must disregard the arguments made by Mr Tovey, firstly, as to abuse of police power by Ferguson and Sadler and, secondly, as to the falsification by them of their diaries. I shall instruct them as to what remains of the Crown’s submission in relation to the Perdicaris issue against Mr Cox, namely that such was the relationship between Cox, Sadler and Ferguson that Sadler and Ferguson as members of the police force did the work of Select Investigation Services on 1 May 2000 in circumstances where that work lay outside the apparent scope of their duties as members of the Drug Squad. I shall, of course, direct them that that is a submission for them to consider and that they must also, in due course, bear in mind any submission made in that respect by the accused.
I turn, then, to the application made on behalf of Mr Sadler to discharge the jury. The question of the discharge of a jury by a trial judge is essentially, of course, a matter of discretion. The principles which relate to the exercise of that discretion are set out in the judgment of Dawson J in Crofts v R[3] where His Honour stated:
[3](1996) 196 CLR 427 at 432.
“Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is within the trial judge’s discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that ‘a high degree of need for such a discharge’ must appear before a discharge will be ordered.”
Similarly, in their joint judgment at p.440 Toohey, Gaudron, Gummow and Kirby JJ said as follows:
“No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence and the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of seen in context than can be discerned from reading the transcript.”
This is now the 73rd day of this trial. That, of course, is a relevant circumstance. However, if I were to form the view that as a result of the submissions made by Mr Tovey and/or as a result of the publications to which I have referred, there were prejudice occasioned to Mr Sadler which could not be suitably allayed by an appropriate judicial direction, I would regard it as my duty to discharge the jury against him.
The first question, then, is whether Mr Sadler has suffered any prejudice as a result of the submissions made by Mr Tovey, which I have now ruled to be impermissible. The allegations of abuse of power and falsification of diaries are serious allegations and were indeed made in quite strong terms. Nonetheless, they must be seen in their proper setting. They were made in the space of not more than ten minutes in an address by Mr Tovey, which has so far lasted for more than three‑and‑a‑half days. I doubt that Mr Tovey will complete his address in the next three days. It is anticipated that the addresses on behalf of both accused will last for at least eight days. I anticipate that my final charge to the jury will last for at least ten days.
This has been a long and complex trial. Many, many allegations have been made in the course of evidence. Mr Tovey has already made submissions in relation to a large variety of issues which have arisen in the trial. On some of those issues he has descended to detail and has made submissions with some force. For example, he has made particularly forceful submissions about the events of 2 August 1999 relating to the Burwood Kmart bust. His submissions on that topic took quite some time and the fundamental propositions which he advanced against the accused arising from that incident were made by him with quite some vigour. It is in that context that I need to consider whether any potential prejudice to Mr Sadler from the submissions made by Mr Tovey relating to the Perdicaris matter can be offset by appropriate judicial direction.
In the course of argument counsel and I each observed, and I think quite appropriately and correctly, that the jury empanelled in this matter has been particularly conscientious and attentive. I have been most impressed with their demeanour and their conduct in court. In my role as trial judge, I have made it my practice, as I normally do, to keep a reasonably close eye on how the jury are coping with proceedings.
At the outset of this case I instructed the jury that they must approach the case in a judicial and fair manner. Everything I have observed about the jury’s manner in court bears out my confidence that that is what they are doing. If I do not discharge the jury, I would direct them that they may not use any matter relating to the Perdicaris issue against Mr Sadler. I would remind them of my earlier direction which I have given to them that they are hearing two trials and I would emphasise to them that they may only use the Perdicaris issue in the trial of Mr Cox. I would also, in that direction, instruct the jury in the terms that I have already indicated, namely that they must ignore and disregard the arguments against Mr Cox in relation to abuse of power and falsification of diaries.
In light of the matters which I have already set out, I am confident that the jury would understand and follow that instruction. Depending on my assessment of the trial, I would also, if I felt it necessary, repeat that direction to the jury in my final charge. Certainly when I summarise Mr Tovey’s argument, I would at that stage remind the jury of how they may and may not use the residue of the submissions made by Mr Tovey in relation to the Perdicaris issue.
In my view, bearing in mind all those matters, such a direction to the jury would offset any prejudice to Mr Sadler. Accordingly, I do not consider it necessary to discharge the jury on that basis.
In this context it is also relevant for me to briefly relate the circumstances in which this issue arose.
Exhibit SC 64 was tendered by Mr Young through Mr Singer on 25 June. Mr Singer was then briefly cross‑examined by Mr Tovey on the next day, 26 June. The very first questions directed to Mr Singer related to the 1 May report to him. At p.5356 of the transcript Mr Tovey took Mr Singer to that report and then occurred the following question and answer.
Question: “Did you ever discuss with Mr Cox how it was that Mr Sadler and Mr Ferguson came to be exercising their police powers on your behalf?”
Answer: “No, I did not and I must say I wasn’t aware they were executing their police powers on my behalf.”
No objection was taken by either counsel then or subsequently to that cross‑examination by Mr Tovey.
Mr Tovey then commenced his final address on Friday 30 June. For some time he took the jury through what he described as an outline of the structure of his final address. That structure consisted of the enumeration and identification of a number of events in the trial which Mr Tovey submitted the Crown had proven. To assist the jury, he displayed on the wall a list of those events. Event no.6 displayed on the wall and read to the jury by Mr Tovey was as follows: “Ferguson and Sadler interview Perdicaris for Cox.” While taking the jury through that list of events, Mr Tovey spoke in respect of each topic identified by him. In respect of topic no.6, he said the following (at p.5508 of the transcript):
“The next is 1 May 2000. Ferguson and Sadler interviewed Perdicaris for Cox. You will remember this is something which came out just recently when we had Mr Singer’s investigation going on. The Crown says that is an important piece of evidence because it shows the nature of the association between Cox and Ferguson and Sadler once Cox had left the police force. I will go into more detail about that in submissions to you later on. The other thing the Crown will point to about that is the diary entries of Ferguson and Sadler on that day are fabricated, but Sadler’s being not quite as fabricated as Ferguson’s. The Crown says that speaks volumes about the nature of the association between these fellows. The Crown in the end will say they were as thick as thieves, peas in a pod.”
Later on that day Mr Tovey addressed a topic relating to the relationship between the accused and Ferguson. In the course of making that submission, he said (at p.5536).
“ ... given not just that they were friends but they were living in each other’s pockets, as you can see from the Perdicaris incident where Cox just calls them in to help out in relation to a private investigation.”
No objection was taken by either counsel to the remarks made by Mr Tovey as outlined by him on Friday 30 June. Neither of them approached Mr Tovey or warned him in relation to any of the submissions which he had just foreshadowed.
From that outline of the history of this matter, a number of points are clear. Firstly, in my view, Mr Tovey made it abundantly clear he was intending to rely on the Perdicaris report of 1 May against both accused. Secondly, and in that context, he made it clear that he was going to contend that Ferguson and Sadler as police were prepared to help Cox in a private investigation. Thirdly, in that context Mr Tovey made it clear that he would be submitting that Ferguson and Sadler had fabricated their police diaries in that manner. Yet no counsel, as I say, objected to Mr Tovey raising any of those matters nor did they warn Mr Tovey that it would be impermissible for him to do so. I refer to those matters, not as a criticism of counsel, but because I have before me in this lengthy trial counsel who have all shown themselves, in my view, to be competent, dedicated and extraordinarily conscientious. It is fair to say that defence counsel have been well alert to all issues, large and small. Yet when Mr Tovey raised the issue as he did, none of them saw fit to object. None of them then sensed any untoward prejudice occasioned to their clients arising out of the remarks foreshadowed by Mr Tovey.
It is true, and it is fair to say, that Mr Tovey has now enlarged on those points and has done so eloquently and in strong terms. However he did do so in the space of ten minutes in a trial which so far has lasted three‑and‑a‑half months and which, I regret to say, will last at least another five weeks before the jury retire to consider their verdicts. In that light I am fortified in my view that any untoward prejudice to Mr Sadler arising from Mr Tovey’s reaction, or indeed any untoward prejudice to either accused, can be suitably negated by directions which I have already referred to above and which I intend to give to the jury.
The second matter relied upon by Mr Georgiou in his application for the discharge of the jury concerned the article in the Herald Sun and the excerpt from the AM radio program to which I have referred. Mr Georgiou mainly relied on those matters as constituting additional prejudice which compounded the prejudice to his client arising from Mr Tovey’s submission about the Perdicaris issue.
The Herald Sun article on p.1 expressly states that the subject of the raid on 5 July by the Office of Police Integrity was the Armed Offenders Squad. Mr Georgiou did not, as I understand his submissions, place any reliance on that aspect of the article. The part of the article to which he takes particular exception is that contained in its concluding paragraphs which summarises the interview with Mr Brouwer in November 2005. As I stated, that section of the article repeats what Mr Brouwer had said, that the Office of Police Integrity had uncovered convincing evidence of corruption which had particular features. Those features included drug dealing and giving the green light to other dealers and corrupt association with private investigators and security industry staff. While those allegations have a similarity to some of the allegations in this case, I agree with Mr Tovey that they were made in the article in general terms. That type of allegation has been made from time to time in the public arena over the years. In preliminary directions to the jury, I have directed them that they must focus only on the evidence in the trial and that they are to disregard anything in the media which in any way may relate to this case. In my view, any prejudicial effect arising from the article can be suitably nullified by an appropriate direction to the jury when they return to court and also by the usual direction in my final charge to them that they must focus on the evidence and ignore anything which may have surfaced in the media. Similarly, I consider that the reference to the Drug Squad in the AM program of 6 July can be sufficiently catered for by an appropriate direction by me to the jury.
The fact that the Drug Squad has been disbanded and reformed has already been referred to in evidence in this case. Counsel for the accused have raised in cross‑examination the publication of newspaper articles adverse to the reputation of the Drug Squad in the second half of 2002 when advancing the proposition that Duy Le was forewarned of the activities of Ceja. I do not consider that what was said on the AM program adds anything of substance to what has already emerged in the evidence and which cannot be sufficiently dealt with by way of a direction to the jury. For those reasons I refuse the application made on behalf of Mr Sadler to discharge the jury.
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