R v Cox & Sadler (No 15)
[2006] VSC 272
•28 July 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN | Plaintiff |
| v | |
| STEPHEN COX AND GLENN SADLER | Defendants |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 28 July 2006 | |
CASE MAY BE CITED AS: | R v Cox and Sadler (Ruling No. 15) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 272 | |
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CRIME – Conspiracy – Lies and other post offence conduct – Consciousness of guilt.
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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 |
TABLE OF CONTENTS
Telephone call by Sadler to Duy Le, 9 November 2002, 6.27pm............................................ 4
Sadler telephone call to Ferguson, 9 November 2002, 6.43pm............................................... 6
Falsification of diary by Sadler, 11 November 2002................................................................. 6
Telephone conversation between Sadler and Ferguson, 12 November 2002....................... 8
Telephone conversation between Cox and Sadler, 13 November 2002, 7.13pm............... 10
Telephone conversation between Sadler and his brother, 14 November 2002.................. 13
Disposal of telephone by Sadler................................................................................................ 13
Avoiding contact with Duy Le.................................................................................................. 14
Telephone conversation between Cox and Sadler, 13 November 2002 – other matters... 14
Cross‑examination of Agbayani............................................................................................... 16
Alexia Cox evidence - Zoneff direction................................................................................... 17
HIS HONOUR:
The final address of Mr Tovey, Queen’s Counsel, senior counsel for the Crown, has concluded. Mr Young, who appears for the first accused, Mr Cox, has commenced his final address. During his address to the jury Mr Tovey made a number of submissions relating to the conduct of both accused on and after 9 November 2002. One of those submissions was that the two accused were involved in a course of conduct which evinced, in both of them, a consciousness that they had been involved in the corrupt association with Duy Le as alleged by the Crown. The question has arisen whether I need to give particular directions to the jury in relation to the concept of consciousness of guilt.
The principles relating to the concept of consciousness of guilt are relatively clear. It is the application of those principles, in individual cases, which can cause difficulty. Where the Crown relies on what it alleges to be a lie by an accused, or other conduct by an accused, after the commission of an offence, as an implied admission of guilt, the judge must identify the lie or other conduct relied on, and give to the jury a direction, now referred to as an “Edwards” direction, of the type prescribed by the High Court in Edwards v R.[1] Where the Crown has relied on a lie by an accused, or other conduct by an accused, after the commission of an offence, which might, incorrectly, be misunderstood by the jury as evidence of an implied admission of guilt, the judge should give a direction, commonly referred to as a “Zoneff” direction, of the type prescribed by the High Court in Zoneff v R.[2]
[1](1993) 178 CLR 193 at 210-11.
[2](2000) 200 CLR 234 at 245.
Those principles, of course, only relate to conduct by an accused after the commission of the offence, and which may be construed as an implied admission by the accused of guilt of that offence. In this case, the accused are charged with the crime of conspiracy to traffick heroin in commercial quantities between 1 April 1999 and 6 December 2002. However, on any analysis, the offence charged against the accused was complete, at the very least, by 9 November 2002. Thus the conduct and lies relied on by the Crown, and to which I have referred, all occurred after the completion of the offence alleged by the Crown.
The Crown has also relied, in the course of evidence and in the course of Mr Tovey’s submissions, on a number of matters which occurred during the lifetime of the alleged conspiracy, such as lies to Mr Newman and Mr Blakeley as to the whereabouts of Duy Le, and falsification of documents such as diaries and day books. Those matters, of course, do not raise issues of consciousness of guilt. They are alleged to be conduct by each accused in the course and furtherance of the conspiracy. It is clear that the Crown has argued to that effect in the course of this case, and I am not concerned that there is any prospect of the jury being confused as to the relevance of that type of evidence and submission.
Thus the issues which I must consider now relate to questions of consciousness of guilt arising in respect of conduct of the accused on and from 9 November 2002. Before considering them, seriatim, it is necessary to identify one further matter. One of the submissions made by Mr Tovey to the jury was that, on and from 9 November 2002, Cox and Sadler, and their alleged co‑conspirator Ferguson, engaged in a pattern of conduct which was designed to conceal evidence of the fact that, on 9 November 2002, Sadler had spoken on the telephone to Duy Le, and that, on 11 November 2002, Cox had spoken to Duy Le on the telephone, and that in the course of each conversation Duy Le had said that police were investigating the purchase by Ferguson of a secondhand BMW motor vehicle from Duy Le in November 2000. Mr Tovey submitted that both accused were concerned to conceal evidence of the fact and content of those conversations, because revelation of them might thereby cause them to be implicated in the conspiracy with which they have now been charged.
In general terms, in response to that submission, both Mr Young (who appears for Mr Cox) and Mr Georgiou (who appears as senior counsel for Mr Sadler) have contended that the jury could not reasonably infer that some of the conduct relied on by the Crown constituted an attempt by their client to conceal disclosure of the accused’s contact with Duy Le on 9 November and 11 November respectively. It was however accepted that if the jury could infer that the accused had engaged in conduct designed to conceal the disclosure by him of his contact with Duy Le in November 2002, then it would be necessary for me to give an appropriate “Edwards” direction to the jury.
The question whether a jury should draw a particular inference is, of course, a question of fact for the jury. The role of the trial judge is not to determine whether a jury should draw an inference. Rather the sole task of the judge is to determine whether the jury, acting rationally, could (not should) draw the inference contended for by the Crown; R v Cengiz.[3]
[3][1998] 3 VR 720 at 721 (Ormiston JA), 735, 738 (Harper AJA); see also Attorney‑General Reference No. 1 of 1983 [1983] 2 VR 410.
The Crown relies on a series of acts of Sadler and, to a lesser extent, of Cox, in support of its contention that both accused embarked on a course of conduct designed to conceal the contact which they had with Duy Le on 9 November and 11 November respectively. If I consider that I need to give an “Edwards” direction in respect of any of those acts, it would be necessary for me to give that direction, specifically tailored to each particular act relied on by the Crown. It is not possible for me to give such a direction which might cover each act and utterance relied on by the Crown. However, I agree with Mr Tovey’s submission that the requirement that I give any “Edwards” direction specifically tailored to each item of conduct relied on by the Crown should not obscure the point that he seeks to make, namely, that each item of conduct must be construed, not in isolation, but in the context of the conduct of the accused which has preceded it.
I now turn to consider each of the individual items of conduct relied on by the Crown.
Telephone call by Sadler to Duy Le, 9 November 2002, 6.27pm.
On 9 November 2002 Duy Le made a number of attempts to contact Sadler’s mobile telephone. At 3.57pm he sent an SMS message to Sadler’s mobile. At 6.19pm Sadler, using his mobile, telephoned Duy Le on his mobile and hung up when Duy Le answered and said “Hello”. At 6.27pm Duy Le was telephoned from a public telephone box which was located a short distance from Sadler’s residence. The Crown submits that that telephone call was made by Sadler. In my view it is clearly open to the jury to infer that it was Sadler who made that phone call, and the contrary has not been submitted by Mr Georgiou. The Crown submitted to the jury that Sadler made the telephone call from the public phone box because he knew he had had an illicit and corrupt association with Duy Le, and he was therefore concerned that the call which he then made to Duy Le could not be traced to him.[4]
[4]T 6225.
Mr Georgiou has accepted that that submission is one which requires me to give an “Edwards” direction to the jury. In my view that concession by Mr Georgiou is clearly correct. It is open to the jury to conclude that Sadler chose to make the phone call from the public telephone box so that his call to Duy Le could not be traced to him. Duy Le was a drug trafficker who had absconded in respect of serious criminal charges. Sadler was a member of the Drug Squad. In those circumstances it is open to the jury to infer that Sadler did not wish his telephone call to Duy Le to be traced because he was concerned that any evidence of that call might implicate him in having had an illicit and corrupt association with Duy Le. The fact that Sadler made the telephone call from the public phone box would not, in my view, give rise to an inference that Sadler was conscious that he had been involved in a corrupt relationship with Ferguson and Cox to traffick heroin, as alleged in the presentment. Mr Tovey did not seek to make such a submission to the jury. However, there has clearly been an issue in the trial whether Sadler had had a corrupt and illicit relationship with Duy Le. It had been squarely put to Duy Le in cross‑examination that Sadler had not been involved in trafficking heroin to Duy Le, and that any contact by Sadler with Duy Le after Le had absconded was for legitimate police business. In that context, the conduct of Sadler, in making the telephone call to Duy Le from a public phone box, was relevant and admissible to showing a consciousness on the part of Sadler that he had been involved in an illicit and corrupt relationship with Duy Le, which is a significant issue in the trial.[5]
[5]Compare R v Heyes [2006] VSCA 86 at [3], [7] (per Charles JA); [50] (per Buchanan JA).
Sadler telephone call to Ferguson, 9 November 2002, 6.43pm.
Sadler telephoned Ferguson at 6.43pm on 9 November 2002. That telephone call was the subject of a police intercept (call No. 37). Mr Tovey submitted that in the course of that telephone call Sadler deliberately refrained from telling Ferguson of his contact with Duy Le, because he was concerned that the telephone conversation might be the subject of a police intercept, and if he was overheard telling Ferguson of his contact with Duy Le, he might thereby be implicated, with Ferguson, in a guilty association with Duy Le.[6]
[6]T 6226; also T 6069-70; 6186.
Mr Georgiou also accepted that that submission by Mr Tovey required me to give an “Edwards” direction. I consider that that concession by Mr Georgiou is correct. The purchase by Ferguson of his BMW motor vehicle from Duy Le is cogent evidence of the existence of a corrupt relationship between Duy Le and Ferguson. The fact that Duy Le contacted Sadler about the approach by police to Loan Tran in respect of the BMW, and the fact that Sadler then contacted Ferguson about that topic would, if revealed, be capable of giving rise to an inference that Sadler was a party to a corrupt relationship between Ferguson and Duy Le. Thus, the jury would be entitled to infer that Sadler deliberately refrained from telling Ferguson of his contact with Duy Le, because he was concerned that if he was overheard informing Ferguson of his contact with Duy Le, he might thereby be implicated with Ferguson in having had a corrupt relationship with Duy Le involving the trafficking of drugs.
Falsification of diary by Sadler, 11 November 2002
Mr Tovey next submitted that Sadler, on 11 November 2002, falsified his diary in two respects. First, he made an entry at 1.00pm that he had liaised with Ferguson concerning the “Giac” trial. Mr Tovey submitted that while Sadler met with Ferguson at that time, the real purpose and object of the discussion was to discuss the telephone call which Sadler had had with Duy Le on 9 November. Secondly, Mr Sadler’s diary records a telephone call to Cox at 2.15pm “re trial of Cheung”. The Crown accepts that that telephone call was made. However Mr Tovey submitted that the real purpose of the call was for Sadler to discuss with Cox Sadler’s telephone call with Duy Le on 9 November, and to have Cox act upon it by contacting Duy Le.
Mr Tovey submitted that Sadler fabricated his diary in those two respects in order to conceal the fact that he had been in contact with Duy Le on 9 November, and that he did so because he was conscious that if he were to reveal that fact it might implicate him in the conspiracy.[7]
[7]T 6228.
Mr Georgiou made two submissions in response, namely:
(a)that it was not open to the jury to find that Sadler had falsified his diary as alleged by Mr Tovey;
(b)in any event, if Sadler did falsify his diary as alleged, that action by Sadler was not capable of giving rise to an implied admission of guilt by him, and therefore the submission by Mr Tovey should be the subject of a “Zoneff” direction.
In my view the question whether Sadler falsified his diary, as contended by Mr Tovey, is essentially a question of fact for the jury. It is open to the jury to find that Sadler did falsify his diary in the manner suggested by Mr Tovey. The diary entries of 11 November must be seen in their proper context. In particular they must be understood in the context of the contact which the Crown alleges Sadler had with Duy Le on 9 November, and his subsequent telephone call to Ferguson on 9 November. During that call Sadler was clearly suggesting that he and Ferguson get together on 11 November. He did not mention the Giac trial during that conversation. In this context it is reasonably open to the jury to infer that the meeting between Sadler and Ferguson on that day was to discuss the telephone conversation which Sadler had had with Duy Le on the previous Saturday, 9 November. Similarly, seen in its proper context, I consider that it is reasonably open for the jury to infer that the diary entry in relation to the telephone conversation with Cox at 2.15pm on 11 November was also a fabrication. That conversation followed Sadler’s meeting with Ferguson, and was then followed by Cox’s telephone call to Duy Le. In turn that telephone call was followed by a call by Cox to Sadler. It is reasonably open to the jury, in those circumstances, to infer that the real purpose of the telephone call made by Sadler to Cox in the afternoon of 11 November was to discuss his contact with Duy Le on 9 November, and to request Cox to speak to Duy Le himself.
If the jury were to consider that Sadler had deliberately fabricated the contents of his diary in order to provide a “cover” for his meeting with Ferguson, and for his telephone call to Cox, on 11 November, then the jury would be entitled to reasonably infer that Sadler fabricated his diary in that way because he was concerned that if the true facts of his meeting with Ferguson and his telephone conversation with Cox were revealed, that would implicate him as having been, with Ferguson and Cox, in an illicit and corrupt association with an absconding drug trafficker. For those reasons I consider that it is necessary to give an “Edwards” direction to the jury in respect of the two entries of the dairy of Sadler of 11 November.
Telephone conversation between Sadler and Ferguson, 12 November 2002
On 12 November 2002 Sadler telephoned Ferguson at 9.34am. That call was the subject of a telephone intercept (call No. 438). Mr Tovey referred to the part of the call in which Sadler and Ferguson discussed what their friend “Barney” had told Sadler about his interview with the police. Mr Tovey submitted that Sadler was feigning ignorance as to why the police had spoken to Barney, when he well knew that the police had done so because they were investigating the purchase by Ferguson of Duy Le’s motor vehicle. It was submitted by Mr Tovey that the telephone conversation was a charade, in which Mr Sadler deliberately sought to deceive any person listening to the telephone conversation of his lack of knowledge as to why investigations were then being undertaken by the Ethical Standards Division of the Victorian Police Force.
In respect of this conversation, Mr Georgiou submitted that it was not reasonably open to the jury to infer that Sadler was deliberately avoiding mentioning his knowledge of why the police had spoken to Barney. Mr Georgiou submitted that, particularly in light of the fact that it was then known that the police were investigating other unrelated matters pertaining to Ferguson, the inference that Sadler and Ferguson were deliberately avoiding talk about the BMW and its sale from Duy Le to Ferguson is not open.
In reply Mr Tovey submitted that the conversations between Ferguson and Sadler on 12 November must be understood in the context of what preceded it in the previous three days. He submitted that, at the least, it was open to the jury to infer that while Ferguson and Sadler were speculating about why the police had spoken to Barney, they deliberately refrained from referring to the conversation which Sadler had had with Duy Le, in which Duy Le told Sadler that the police were investigating Ferguson’s BMW.
In order to rule on this submission, I have taken the opportunity to listen again to the compact disk recording of the conversation between Ferguson and Sadler. The submission made by Mr Georgiou does have some force, particularly as the conversation was largely concerned with Sadler reporting to Ferguson that the police were investigating Ferguson’s accumulation of wealth. However, there are two matters which are relevant. First, it is clear that in the course of it Sadler and Ferguson were, at least to some extent, speculating as to why the police had spoken to Barney. Secondly, the conversation occurred in circumstances in which Ferguson and Sadler both knew that the police were investigating the circumstances in which Ferguson had acquired a secondhand motor vehicle from Duy Le, who was a drug trafficker who had absconded in breach of bail. In my view, it is a matter for the jury as to whether, in that context, Sadler deliberately refrained from talking to Ferguson, about that matter, in the telephone conversation on 12 November. In other words, a jury would not be acting unreasonably or irrationally if it concluded that, in the course of that conversation, Sadler was deliberately avoiding talking about the BMW. The question whether the jury comes to that conclusion very much depends upon the jury’s interpretation of what was said by Sadler in that telephone call. I shall of course emphasise to the jury that it is important for them to listen again to the recording of the conversation, rather than relying on the transcript.
In those circumstances I therefore am of the opinion that it is necessary for me to give an Edwards direction in respect of the conversation of 12 November. Indeed, as I understood him, Mr Georgiou did not gainsay the proposition that, if the jury might reasonably conclude that Sadler deliberately refrained from referring to the BMW in his conversation on 12 November, it would be necessary for me to give an “Edwards” direction for the reasons I have already set out above.
Telephone conversation between Cox and Sadler, 13 November 2002, 7.13pm.
Mr Tovey next made submissions to the jury in respect of a telephone conversation between Cox and Sadler at 7.13pm on 13 November 2002 (call No. 366). Mr Tovey submitted that in that telephone call both Cox and Sadler were each professing ignorance as to what Ceja was investigating, in circumstances in which they both well knew that Ceja was investigating the purchase by Ferguson of the BMW from Duy Le. Mr Tovey submitted that Cox and Sadler were both conscious that their telephone call was being listened to. He submitted that by falsely professing their ignorance of what Ceja was investigating they were seeking to cover up their involvement in the conspiracy.[8]
[8]T 6246-9.
Both Mr Young and Mr Georgiou submitted that the jury could not reasonably come to the conclusion that during that telephone call either of their clients were deliberately refraining from referring to the conversations which they had had with Duy Le on which he had told them that the police were investigating Ferguson’s BMW.
Mr Young informed me that he would be submitting to the jury that they should not conclude, on the evidence, that Duy Le, in his conversation with Cox on 11 November, had referred to the BMW which he had sold to Ferguson, but rather had simply referred to a BMW. Further Mr Young informed me that he would submit to the jury that, in his evidence, Duy Le did not say that he told Cox that police from the Ethical Standards Department had spoken to him, but that Duy Le only referred to police in general. Mr Young accepted that each of those submissions were matters for the jury. The main submission made by Mr Young on this aspect of the case, which was joined in by Mr Georgiou, was that it would not be open to the jury to infer that in their telephone conversation on 13 November Cox and Sadler each refrained from referring to their previous telephone call with Duy Le in which he told them about the visit of the police to Loan Tran relating to the BMW. Mr Young, who made the main submissions on this point, contended that no reasonable jury could come to that conclusion because of the context in which the call occurred. First he reminded me that, before the telephone conversation on 13 November, there had been an earlier conversation between Cox and Sadler. The existence of that telephone conversation explains why they may not have discussed the contacts with Duy Le on 13 November, because they had discussed it earlier. Further, he submitted that there was evidence that for some months there had been rumours that Ceja was investigating the Drug Squad. Accordingly when Cox and Sadler were speculating, on 13 November, as to what had given rise to Ceja’s questioning of Barney, they were speculating in a more “global” way as to what was going on generally at that stage, rather than in reference to the visit of the police to Loan Tran concerning Ferguson’s BMW.
Again there is, in my view, some force in the submissions made by Mr Young and Mr Georgiou on this aspect of the case. However, notwithstanding those submissions, I do not consider that it would be irrational or unreasonable for a jury, listening to the recording of the telephone conversation, to conclude, in the context of that call, that either Cox or Sadler intentionally refrained from mentioning his previous contact with Duy Le, in which Duy Le told him about the visit of the police to Loan Tran concerning Ferguson’s BMW. The jury would consider the telephone conversation in the context of the events of the previous few days. In respect of Sadler, the jury would take into account the telephone conversations which it is said that Sadler had with Duy Le on 9 November, Sadler’s conversation with Ferguson on 9 November, and Sadler’s contact with Cox on 11 November. If the jury concluded that Sadler, during that period, had been concerned to conceal any evidence of his contact with Duy Le on 9 November, then that would be an important fact in construing what Sadler said to Cox in the conversation on 13 November. Similarly, in respect of Cox, the jury would consider and construe the conversation in the context of the background circumstances. Those circumstances would include Cox’s contact with Sadler on 11 November, the fact that Cox then spoke to Duy Le on 11 November from an office telephone, and then contacted Sadler again. In respect of both accused, the jury would take into account the two passages, to be found at pp.2 and 7 of the transcript of the telephone call, to which Mr Tovey has referred. In particular the jury would take into account the latter passage, in which Sadler and Cox discussed Sadler’s supposition that police in Corio Traffic Operations Group were saying that Ferguson was corrupt because he was driving around in a BMW motor vehicle. At that point neither Cox nor Sadler suggested that what might be of greater moment to Ceja was not simply the fact that a policeman was driving a BMW motor vehicle, but, rather, that the policeman had purchased that motor vehicle from a drug trafficker who had absconded on outstanding serious criminal charges.
The submission made by Mr Tovey in respect of the telephone conversation of 13 November depends very much on how the tribunal of fact perceives the contents of the conversation between Sadler and Cox. Much depends on the jury’s perception of how they spoke, their tone of voice, matters of emphasis, and the like, which are all to be gleaned from listening to the recording of the conversation. Those matters are essentially matters of fact for a jury. As the High Court said in Doney v R:[9]
“ … The purpose and the genius of the jury system is it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether, and in the case of conflict, what evidence is truthful.”
[9](1970) 171 CLR 207 at 214.
In the context of the background to the telephone call to which I have referred, in my view it is open to the jury, applying its ordinary experiences, to conclude that either Cox or Sadler did deliberately refrain from referring to the contact with Duy Le, when the spoke on the telephone to each other on 13 November.
As I understand it, both Mr Young and Mr Georgiou accepted that if I came to that conclusion, then it would be necessary for me to give to the jury an “Edwards” direction in relation to this aspect of Mr Tovey’s submission. For reasons which have already been stated above I consider that that is the correct analysis of the submission made by Mr Tovey.
Telephone conversation between Sadler and his brother, 14 November 2002.
Mr Tovey next contended that, in the course of a telephone conversation which Mr Sadler had with his brother on 14 November 2002 (call No. 202), Sadler untruthfully told his brother that he had paid for his Landcruiser by putting his money through Ferguson’s account, because Ferguson obtained a discount because he was a farmer. Mr Tovey submitted that that was a lie, and that Sadler lied to his brother because there was no explanation for his purchase of the Landcruiser, other than that he had obtained it as a result of having access to drug money through the conspiracy involving Duy Le.[10]
[10]T 6253; also T 5515, 5979, 6070.
Clearly, the argument made by Mr Tovey does attract the requirement of an “Edwards” direction. Mr Georgiou accepted that that is so.
Disposal of telephone by Sadler
In the course of his telephone conversation with Mr Cox on 13 November, and in the course of a later conversation with his mother, Sadler stated that he had got rid of his mobile phone. The call charge records show that the last telephone call made by Sadler on that mobile phone was the call which he made at 6.19pm to Duy Le. Mr Tovey submitted that Sadler disposed of his mobile phone because he knew that if Ceja seized and interrogated his telephone, that would reveal evidence of the telephone call which Sadler had with Duy Le on 9 November. Mr Tovey therefore submitted that the only reasonable inference for the disposal by Sadler of his telephone was because Sadler knew that he had had that telephone contact with Duy Le on that date, and evidence of which might implicate him in an illicit and corrupt association with Duy Le.[11]
[11]T 6246.
In my view it is clearly open to the jury to infer that Sadler had disposed of the telephone for the reason propounded by Mr Tovey. Whether the jury draws such an inference is a matter for the jury, but such an inference would not be irrational or unreasonable. Mr Georgiou accepted that if that is so, then it would be necessary for me to give the jury an “Edwards” direction. Again, it seems to me that that is clearly correct.
Avoiding contact with Duy Le
Mr Tovey also submitted that after 11 November 2002 both Cox and Sadler made themselves unavailable to speak further to Duy Le, and they did so because any perceived contact between themselves and Duy Le would be interpreted in the way it is now being interpreted, namely, that they are guilty of a corrupt association with Duy Le.[12]
[12]T6250.
As Mr Young and Mr Georgiou have both submitted, the argument made by Mr Tovey is, on analysis, without a factual basis, because there is no evidence upon which a jury could conclude that Cox and Sadler intentionally made themselves unavailable to speak to Duy Le. As discussed with counsel, I propose to direct the jury that there is no evidence from which they can draw the conclusion that Cox and Sadler were intentionally making themselves unavailable to speak to Duy Le on the basis submitted by Mr Tovey.
Telephone conversation between Cox and Sadler, 13 November 2002 – other matters
Two other submissions were made by Mr Tovey in relation to the telephone conversation between Sadler and Cox of 13 November. Neither of those matters were put by Mr Tovey as going to a consciousness of guilt. However I consider that I ought to make it clear to the jury that those two arguments were not directed to that issue, but rather to a narrower issue.
On p.5 of the transcript, Mr Sadler is recorded as referring to rumours that Ferguson and he had paid cash for their vehicles. The transcript records Mr Cox as saying “Aah”. From that exclamation Mr Tovey constructed an argument that Cox did not interject and tell Sadler that he should produce his evidence of payment for the vehicle, because he knew that Sadler did not have an innocent explanation for the purchase of the Landcruiser.[13] In respect of this submission, I intend, first, of course, to direct the jury that they must listen to the recording of the conversation, and not rely on the transcript. They should take into account the fact that conversations are free‑flowing, and not scripted. I shall also direct the jury that if they accept that Cox intentionally refrained from advising Sadler that he should produce the evidence for the purchase of the vehicle, at most Cox’s reaction (or lack of it) could constitute knowledge by him of the fact that Sadler had purchased the Landcruiser for cash. That knowledge of Cox is relevant only to the nature of his relationship with Sadler.
[13]T 6247.
In the course of the same conversation Cox and Sadler discussed the fact that the police had been investigating Ferguson’s accumulation of wealth, and in particular the fact that he owned two rural properties. Cox said “ … he owes the bloody banks everything, doesn’t he?” Mr Tovey submitted Mr Cox was seeking to create the impression to any person listening to the telephone conversation that Ferguson was mortgaged to the hilt, when Cox knew that Ferguson had ample cash funds available to him. Mr Tovey submitted to the jury that, in that part of the conversation, Mr Cox was seeking to give Mr Ferguson some support (to give him a “leg up”).[14] If the jury accept Mr Tovey’s submission, that is only relevant to Cox’s relationship with Ferguson. Because of the context in which the argument was made it is, I consider, necessary that I identify to the jury the limited purpose for which Mr Tovey made that submission.
[14]T 6241.
Cross‑examination of Agbayani
In a different context, Mr Tovey has made a submission that the accused, through their counsel, put to Agbayani a particular matter which they knew was untrue. In cross‑examination it was put to Agbayani that, at the Burwood K-mart car park on 2 August 1999, he alighted from his motor vehicle while Duy Le was still in it, thus giving Duy Le the opportunity to extract some of the heroin for himself which was contained in the bag in the vehicle. Mr Tovey has referred the jury to the statements made by both Cox and Sadler in September 1999 for the prosecution of Cheung and Agbayani. In those statements both Cox and Sadler described keeping the vehicle of Agbayani under observation until Duy Le left it. According to their statements, at all times Agbayani remained in the vehicle with Duy Le. Mr Tovey submitted that counsel had put to Agbayani in cross‑examination the contents of the instructions of the accused to their counsel. He thus submitted that the accused had intentionally put a false account to Agbayani.[15]
[15]T 5645, 6113, 6289.
Mr Tovey has not put to the jury that that conduct of the defence constitutes any form of consciousness of guilt of the accused. Nor, logically, could it do so. Mr Tovey submitted that the argument went to the credibility of propositions put on behalf of the accused in relation to the Cheung/Agbayani bust. However the difficulty with that argument is that neither Cox nor Sadler gave evidence in the case. The only propositions which have been advanced were based on evidence of other witnesses who have been called to give evidence. The credibility of the two accused, in relation to that issue, or indeed in relation to any other issue, is not relevant. It seems to me that the best and most prudent way to ensure that the jury do not adopt any inappropriate line of reasoning from this argument is for me, when I summarise the argument, to explain to the jury that the argument in essence was to the effect that the proposition, that Duy Le was left alone in the car with the drugs, while Agbayani was out of it, was contrary to the statements made by Cox and Sadler for the purposes of the police brief, which statements would, if necessary, have constituted the basis of sworn evidence to be given by both policemen in court on the prosecution of Cheung/Agbayani.
Alexia Cox evidence - Zoneff direction
As foreshadowed in the course of discussion with counsel, I propose to give a “Zoneff” direction in relation to submissions made by Mr Tovey that the diaries of Ron Cox, tendered through Alexia Cox, were fabricated, and that Alexia Cox permitted herself to be the conduit for fabricated evidence.[16] I intend to direct the jury that if they are satisfied that the diary entries of Ronald Cox were fabricated, they would not rely on them. Similarly if they find that Mrs Cox was not telling the truth, then they would reject that aspect of her evidence, and they would be entitled also to take that matter into account in determining the general credibility of Mrs Cox. However if the jury were satisfied that the diary entries were untruthful, or that Mrs Cox was deliberately telling untruths, they must not reason that because of that, Cox is guilty of the offence with which he is charged. In other words the jury must not reason that because such untruths were put forward in his case, then Cox must be guilty.
[16]T6166, 6142, 6295.
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