R v Cox & Sadler (No 15) - [2006] VSC 272

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…

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.

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Details

Case: [2006] VSC 272
Decision Date: 28 July 2006

CaseChat Overview and Summary

The defendants, Cox and Sadler, were charged with conspiracy to commit a crime in Australia. The case came before the court following their arrest and subsequent charge. The nature of the dispute centred on whether their post-offence conduct constituted evidence of consciousness of guilt, which could be used to infer their involvement in the conspiracy. The court was tasked with determining the admissibility and weight of such evidence in the context of a conspiracy charge.

The primary legal issue the court had to address was whether the post-offence conduct of Cox and Sadler could be considered as evidence of their consciousness of guilt and, consequently, as proof of their involvement in the conspiracy. The court examined whether such conduct, including lies and other actions taken after the alleged offence, could be admissible in establishing the defendants' intent and knowledge at the time of the offence. The court also had to consider whether this conduct could be properly weighed against other evidence presented in the case.

In reaching its decision, the court analysed the principles of admissibility of evidence in criminal trials, particularly focusing on the relevance and probative value of post-offence conduct. The court concluded that while such conduct could be relevant to show consciousness of guilt, it must be carefully evaluated in conjunction with other evidence to ensure a fair trial. The court found that the post-offence conduct of Cox and Sadler did contribute to the inference of their consciousness of guilt, and therefore, it could be considered as part of the overall evidence against them. The court ruled that the evidence was admissible and could be used to support the charge of conspiracy.

Orders