R v Cox & Sadler (No 16)
[2006] VSC 303
•11 August 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 |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 11 August 2006 | |
CASE MAY BE CITED AS: | R v Cox and Sadler (Ruling No. 16) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 303 | |
---
CRIMINAL LAW – Conspiracy to traffick heroin - Corroboration of witnesses the subject of “Faure” directions.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M. Tovey QC with Mr D. Brown | Office of Public Prosecutions |
| For the Accused Cox | Mr B. Young | Tony Hargreaves & Partners |
| For the Accused Sadler | Mr G.A. Georgiou with Ms H.P. Spowart | Victoria Legal Aid |
TABLE OF CONTENTS
Legal Principles
CORROBORATION OF DUY LE
Duy Le’s evidence against Cox
Duy Le’s evidence against Sadler
Conclusions on corroboration of Duy Le
Cheung/Agbayani Bust and 3 August transaction
Be Bust
Kinnear Street
King Street meeting
Bridge Road meeting - 3 January 2001
Silks meeting – 26 June 2001
“The blow up, warning Duy Le off in South Yarra, CrimeStoppers”
6 April 2002
9 April 2002
23 April 2002 – CrimeStoppers
Events of November 2002
Corroboration details – Part “B”
Part B
Part B
Corroboration details – Part “C”
5 May 2000 – Mastercard transaction
16 May 2000 – laptop computer transaction
25 May
5 June 2000
“Dennis” meeting and telephone calls 21 – 22 June 2000
VL Commodore transaction
Ferguson purchase of Landcruiser for Sadler
13 and 14 November 2000
The Teak Room transaction – 20 March 2001
Corroboration details – Part “D”
Sadler LEAP checks
Phone calls – general
Association of Sadler with Cox and FergusonFinancial
Corroboration details – Part “E”
Sadler gambling
Ferguson financials
Contact with Duy Le – 26 August 1999 to 24 May 2000
Ferguson phone calls
CORROBORATION OF LOAN TRAN
HIS HONOUR:
In this matter I have ruled[1] that I shall give the jury “Faure” directions in relation to the witnesses Duy Le, Loan Tran and Kenneth Lai. I deferred ruling in relation to corroboration until the conclusion of the Crown’s final address, which has now concluded.
[1]R v Cox and Sadler (Trial ruling No. 8) [2006] VSC 233R.
The next question, therefore, is whether there is evidence capable of corroborating the testimony of Duy Le, Loan Tran and Kenneth Lai against either accused. In R v Ferguson[2] I summarised the principles relating to corroboration which I considered applied to that case. I shall apply the same principles to this case, without restating them in the text of this ruling. There are some further principles which are, I consider, relevant to the issue of what evidence if any is capable of corroborating the witnesses I have referred to.
[2]R v Ferguson [2005] VSC 471R.
Legal Principles
The first principle is that it is not necessary that the corroborative evidence directly support the account given by the relevant witness whose evidence requires corroboration. Rather, what is required is that there be evidence, independent of the testimony of that witness, which makes that testimony more probable, by implicating the accused in the offence charged.[3]
[3]See R v Rayner [1998] 4 VR 818 at 850-51 (Brooking JA); R v Martin [2003] VSCA 80 at [36-37] (Vincent JA); R v Matthews and Ford [1972] VR 3 at 19-20; R v Fuhrer [1961] VR 500 at 504-5 (O’Bryan J).
This principle was directly raised for consideration of the Court of Appeal in R v Rayner.[4] There, counsel for the applicant for leave to appeal relied on a passage from the judgment of the High Court in Doney v R,[5] to the effect that it is sufficient if the corroborative evidence strengthens the testimony of the relevant witness, “ … by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice.” It was submitted, in Rayner, that the effect of that dictum was that the corroborative evidence must directly support the account given by the witness whose testimony requires corroboration. The Court of Appeal rejected that submission. Brooking JA described the submission as one which, in effect, required the corroborating witness to be a “fly on the wall” of the incriminating episode related by the witness whose evidence required corroboration. His Honour described that submission as a misconception[6], and stated:
“Corroboration of the testimony of an accomplice does not require direct confirmation of some inculpatory event mentioned by the accomplice, but only evidence which tends to confirm the guilt of the accused. Accordingly, corroboration is capable of being found in evidence which has no direct connection with the narrative of the accomplice.”[7]
[4]Above.
[5](1990) 171 CLR 207 at 211 (emphasis added).
[6]See also R v Ngo [2002] VSCA 188 at [33] (per Winneke P).
[7]Above at 850-851.
In the course of his judgment in R v Rayner, Brooking JA quoted, with approval,[8] the following passage from the decision of the Court of Criminal Appeal of New South Wales in R v Galluzzo:[9]
“ … I wish to emphasise that the requirement of corroboration is not a requirement of corroboration of the actual account given by the witness to be corroborated. It is corroboration of the two broad factors: (1) that a crime has been committed and (2) that the accused person committed it. The common expression of corroboration of the evidence of an accomplice is not to be regarded as requiring corroboration of the particular account given by the witness to be corroborated. It is to be regarded as a requirement of corroboration of the fact of the crime in question having been committed and the fact that the accused person committed it. In this sense it is compendiously described as corroboration of the truth of the accomplice’s story, but this would be more accurately expressed as truth of the conclusion to which the accomplice’s evidence points.”
[8]At 852.
[9](1986) 23 A Crim R 211 at 215.
The application of that principle in a trial of a charge of a conspiracy was considered by the Full Court of the Supreme Court of Victoria in R v Matthews and Ford.[10] In that case the trial judge had directed the jury that they were to look for independent corroboration of the accomplice indicating, first, that the crime charged was committed and, secondly, that the accused had committed it.[11] The Court held that that direction, in the context of a charge of conspiracy, was correct. It was not required that the corroborative evidence relate specifically to each overt act recounted by the accomplice. Rather, what is required is that the corroborative evidence confirmed the existence of the conspiracy involving the accused. Thus the Court stated:
“Notwithstanding that in a conspiracy case there may be an apparent segmentation of the story of an accomplice alleging a conspiracy by dint of the separate overt acts or separate incidents of the story, the rule should apply to a conspiracy charge in the same way as it applies to the charge of a substantive offence, so as to require corroboration in some material particular of the evidence of a conspiracy involving the accused. The complaint that the warning given was inadequate and not a real warning is, therefore, without foundation.”
[10][1972] VR 3.
[11]At 19.
A corollary of that principle is that the corroborative evidence may be, and often is, circumstantial rather than direct evidence. In such a case, while a single item of evidence, standing alone, might be insufficient, nonetheless, in combination with other items of evidence, it may be capable of constituting corroborative evidence; see for example R v Kalajzich and Orrock;[12] R v Galluzzo;[13] Conway v R;[14] R v Duke;[15] R v Fuhrer;[16] R v Gill;[17] R v Small.[18] As Vincent JA stated in R v Taylor:[19]
“Considered in isolation, evidence which is capable of providing support for other evidence may be quite innocuous as far as proof of guilt is concerned. Yet it may, by enhancing the reliability or credibility of other evidence, become extremely important in the determination of the facts by a jury.”
[12](1989) 39 A Crim R 415 especially at 427-9, 434.
[13]Above at 216.
[14](2000) 98 FCR 204 at 255-6 (paras 214-15).
[15](1979) 22 SASR 46 at 52 (King CJ).
[16][1961] VR 500 at 509 (Sholl J).
[17][2003] VSC 317 at [7 to 10] (Redlich J).
[18](1994) 72 A Crim R 462 at 479-80 (Hunt J).
[19]Above at [29]; see also R v Nanette [1982] VR 81 at 84 (McInerney J); Conway v R (2000) 98 FCR 204 at 255-6.
Similarly, in R v Galluzzo, Street CJ (with whom Finlay and McInerney JJ agreed) stated:
“ … I am of the opinion that each of these six elements was available to be evaluated by the jury as an element of corroboration. Taken individually they are, of course, little more than straws in the wind. But, taken together, as the Crown presented them to the jury … they do present a pattern in which some degree of corroboration could be found.”
It follows that evidence may be regarded as corroborative of the account of a witness, notwithstanding that, in the absence of that account, the evidence would not point to the guilt of the accused. In R v Berrill[20] McPherson J stated:
“As a matter both of authority and principle it seems to me to be wrong to say that evidence is necessarily to be treated as without corroborative value simply because it is capable of giving rise to two or more inferences. Such evidence may, as was recognised by the Court in Baskerville, be and often is circumstantial in form and a circumstance is rarely such as to point unequivocally in only one direction particularly as regards a state of mind like consent. If the item of corroborative evidence were to do so unequivocally and without reference to or reliance upon the testimony of the complainant, it would mean that her testimony ‘would not be essential to the case, it would be merely confirmatory of other independent testimony’ … .”
[20]Above at 526-7.
In R v Taylor[21] Winneke P quoted the above passage and then stated:
“With respect, I adopt his Honour’s view in this regard, as did the Court of Criminal Appeal in New South Wales in the case of R v Kalajzich (1989) 39 A Crim R 415 at 430. The Court said that the foregoing passage in the judgment of McPherson J in Berrill’s case ‘exposes the fallacy of many of the arguments advanced in the present case which depend upon the submission that some of the matters left as capable of being corroboration could not have that character because they necessarily presuppose the truth of the evidence of the person whose testimony the Crown sought to have them corroborate’.”[22]
[21]Above at [13].
[22]See also R v Kalajzich (above) at 433.
Furthermore, as stated by McPherson J in R v Berrill, the fact that evidence may not be unequivocally referrable to guilt does not preclude it from being evidence which is capable of being considered as corroborative. In R v Taylor,[23] Winneke P stated:
“The mere fact that [the evidence] might be regarded as consistent with guilt as with innocence, does not prevent it, in my view, from being evidence which is capable of amounting to corroboration … For example, evidence of distress, or injury to, or torn clothing of a girl complaining of having been raped is often left to juries as evidence capable of providing corroboration even though it is equivocal per se. That, of course, does not mean that the evidence is not capable of being corroborative; all it means is that it is a question for the jury to determine whether it is corroborative or not.”
[23]Above at [13].
Similarly, in R v Kalajzich and Orrock, above, the New South Wales Court of Criminal Appeal stated:
“The importance of the Queensland decisions, in our view, is that they place into proper perspective the statements (mainly obiter) in some of the cases, particularly those in South Australia, which would preclude evidence from being capable of corroborating testimony implicating an accused person if that evidence was consistent, not only with the testimony of the person sought to be corroborated, but also with what is said by the accused, provided it is not ‘intractably neutral’ in its effect.”[24]
[24]At 433.
Thus evidence which is capable of giving rise to competing inferences, one of guilt, and one of innocence, is not precluded from being evidence of being capable of constituting corroborative evidence, provided that the evidence is not “intractably neutral”, in the sense that it is incapable of being perceived as supporting the evidence of the accomplice in a relevant way.[25]
[25]R v Gill (above) at [13]; R v Taylor (above) at [16], per Winneke P.
It is well established that, in order that the evidence of the relevant witness be corroborated, there must be evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show, first, that the crime was committed and, secondly, that the accused committed it. In R v Baskerville[26] the Court of Criminal Appeal, after referring to a number of authorities, stated:
“After examining these and other authorities to the present date, we have come to the conclusion that the better opinion of the law upon this point is that stated in R v Stubbs,[27] namely, that the evidence of an accomplice must be confirmed not only as to the circumstances of the crime, but also as to the identity of the prisoner. The learned Baron does not mean that there must be confirmation of all the circumstances of the crime; as we have already stated, that is unnecessary. It is sufficient if there is confirmation as to a material circumstance of the crime and of the identity of the accused in relation to the crime.”
[26]Above at 665.
[27]Dears 555 by Parke B.
That formulation of the definition of corroboration has been adopted in numerous cases. In Galluzzo v R (above) the New South Wales Court of Criminal Appeal, in the passage which I have already quoted, expressly stated that the requirement of corroboration of a witness’s evidence is corroboration “ … of the two broad factors: (1) that a crime has been committed and (2) that the accused person committed it.”[28] Similarly, in R v McLachlan,[29] Callaway JA stated:
“Corroboration, in this context, is evidence from a source independent of the accomplice which implicates the accused in the crime charged by tending to show both that the crime was committed and that the accused committed it.”[30]
[28]At p.215.
[29][1999] 2 VR 553 at [30].
[30]See also for example R v Matthews and Ford [1972] VR 3 at 19.
I do not consider that the High Court in Conway v R,[31] has modified those principles in their application to the trial of a charge of conspiracy. In that case four persons, Conway, McFie, Williams and Steer were charged with the murder of Conway’s wife. The case against Conway and McFie was put on the basis that they had counselled or procured Williams and Steer to murder the deceased. That basis rendered them both liable as accessories before the fact pursuant to s.345 of the Crimes Act 1900 (ACT). Williams and Steer pleaded guilty and both gave evidence against the accused. On appeal one question concerned whether the trial judge had misdirected the jury when he identified what evidence was capable of corroborating the testimony of Steer and Williams. There were four pieces of evidence, left by the trial judge as corroborative evidence, which tended to confirm that Steer and Williams had been implicated in the murder of Mrs Conway. However none of them confirmed any evidence which Steer or Williams gave implicating the appellant, Conway. The High Court held that the trial judge had misdirected the jury by leaving those four items of evidence to the jury as evidence capable of corroborating the testimony of Steer or Williams. In so concluding the High Court observed as follows:
“60.Some items of evidence identified by the trial judge as being capable of constituting corroboration consisted of acts and declarations on the part of McFie which took place in the absence of the appellant. The Full Court concluded that these acts and declarations had been admissible against the appellant under principles of the kind dealt with in Tripodi v The Queen[32] and Ahern v The Queen[33] and that, accordingly: ‘There seems no reason in principle why such evidence, if admissible against [the appellant], could not also be capable of constituting corroboration of the accomplice evidence in his case.’
The respondent’s submissions sought to extend this principle to a more general contention that any evidence tending to confirm the version of events given by the co‑offenders could corroborate the case against the appellant if the total account of events revealed by the evidence showed that he was implicated. In particular, it was submitted that any evidence admitted under the co‑conspirator principles dealt with in Tripodi and in Ahern could amount to corroboration, whether or not it was evidence that implicated the appellant.
61.It is at least open to serious doubt whether, on the trial of an accused, evidence which does no more than corroborate the involvement of the co‑conspirator may be used as corroborative evidence against the accused. The relevant enquiry must be whether the evidence in question tends to confirm or support the evidence which implicates the accused, not just whether the evidence is relevant to the issues at trial.”
[31][2002] HCA 2.
[32](1961) 104 CLR 1.
[33](1988) 165 CLR 87.
I do not regard the remarks by the High Court, in the above passage, as rejecting the requirement that the corroborative evidence must tend to confirm, not just the participation of a particular accused in the crime, but also the commission of the crime itself. Rather, the passage to which I have just referred from Conway has cast doubt on the broader proposition sought to be contended for by the respondents in their case, namely, that it would be sufficient for the corroborative evidence to simply confirm the version of events given by the co‑offender, and that such evidence may comprise no more than evidence admitted under the co‑conspirator principles referred to in Tripodi and in Ahern. It must be borne in mind that in Conway there was no issue as to whether Mrs Conway was murdered. The only issue was whether the appellant was criminally involved in it. By contrast, in the present case, there is an issue, first, as to the existence of the conspiracy alleged by the Crown, and secondly, as to the participation of each accused in that conspiracy. In my view the High Court in Conway did not intend to alter the well established principle established that the corroborative evidence must tend to show both the commission of the crime and the participation of the particular accused in it. Since, in this case, there is an issue both as to the existence of the conspiracy and as to the participation of each accused in it, it is, in my view, necessary to identify evidence independent of Duy Le and Loan Tran, first, as to the existence of the particular conspiracy and, secondly, as to the participation by each accused in it.
CORROBORATION OF DUY LE
It is common ground between the parties that there is no evidence, independent of the testimony of Kenneth Lai, capable of corroborating Lai’s testimony. Accordingly I shall direct the jury to that effect. I therefore turn to consider whether there is evidence capable of corroborating the testimony of Duy Le against either accused. Before considering whether there is evidence capable of corroborating Duy Le’s evidence, it is important to outline the gist of his evidence.
Duy Le’s evidence against Cox
In brief, Duy Le’s evidence against Cox was to the following effect. In April 1999 Duy Le was arrested by the Drug Squad. Shortly thereafter he was recruited to act as an informer to the Drug Squad. In that capacity he set up the arrest of two drug traffickers at the Burwood K-mart car park on 2 August 1999. On the next morning, 3 August, he met Cox at the St Kilda Road Police Complex. There Cox handed him one ounce of the heroin seized from the previous evening’s arrest. Between that date and the arrest of another trafficker, Cao Be on 26 August 1999, Cox trafficked heroin to Duy Le by providing him two ounces of heroin every couple of days. Duy Le stated that Cox did not provide him any further heroin after the arrest of Be. Cox remained in the police force until the end of 1999. Duy Le failed to appear in court in respect of charges facing him on 25 May 2000 and 5 June 2000. After Duy Le absconded he met Cox in King Street to discuss how he (Duy Le) might go about changing his name. In cross‑examination Duy Le conceded that that meeting might have occurred before he absconded. Before he had absconded, he had, on one occasion, provided a laptop computer to Sadler in payment of some heroin trafficked to him by Sadler. Subsequently, after he had absconded, he met Sadler, Ferguson and Cox at a bar in South Melbourne, and had a general discussion with them. In the course of that discussion Sadler made a remark inferring that Cox now had the laptop which Duy Le had given to Sadler. On another occasion, Duy Le fortuitously met Cox, Sadler and Ferguson in the vicinity of Silks Restaurant, Crown Casino. There was a general discussion about news of his warrant. There was also a discussion about how Cox’s laptop computer was going. From April 2002 Duy Le lived in Sydney. On 9 November 2002 his girlfriend Loan Tran contacted him to tell him that police had questioned her about the BMW, formerly owned by her, which was now in the name of Ferguson’s wife. Duy Le contacted Sadler with that information. Sadler said that he would get back to Duy Le. On Monday, 11 November 2002 Cox telephoned Duy Le. Duy Le told him that police officers had been to see Loan Tran and that they were asking about the BMW, and they wanted to find out where he (Duy Le) was. Cox said that he would contact Duy Le at a later stage. Thereafter there was no further contact between Cox and Duy Le before Duy Le’s arrest in Sydney on 6 December 2002.
In determining, in accordance with those principles, what evidence is capable of corroborating the testimony of Duy Le against Cox, it is important to bear in mind that the charge against Cox is not that of trafficking heroin to Duy Le. Rather, and importantly, Cox is charged with being a party to a conspiracy with Ferguson and/or Sadler to traffick heroin to Duy Le between April 1999 and 2002. The core of the Crown case, as opened to the jury,[34] is that Cox was the person who first cultivated Duy Le in the second half of 1999, and Cox is the person who got the trafficking of heroin to him underway with the assistance of Sadler. The Crown case against Cox focuses on his activities during the second half of 1999, but the Crown also alleges that he continued to have a degree of involvement in the ensuing years. The Crown alleges that that involvement includes Cox being consulted from time to time about what was going on, and, at the end, Cox’s involvement in the series of telephone calls which passed between Sadler and Duy Le on 9 November and 11 November 2002 when it came to light that the police had learnt of the acquisition by Ferguson of Duy Le’s BMW vehicle.
[34]T98-99 (15/3/99).
Thus the question is not whether there is evidence corroborating the allegation by Duy Le that Cox trafficked heroin to him for a short period in August 1999. Rather the question is whether there is evidence, independent of Duy Le, corroborating what the Crown says is the conclusion to be drawn from Duy Le’s testimony, namely, that Cox was a member of a conspiracy, with Ferguson and Sadler, to traffick heroin to Duy Le between 1999 and 2002.
Duy Le’s evidence against Sadler
In summary, Duy Le stated that, shortly after Cox commenced to supply heroin to him, he was also supplied with heroin by Ferguson and Sadler. Initially he dealt with Ferguson and Sadler on about the same level. However from about mid-2000 he started dealing a lot more with Ferguson than Sadler. By that stage the amounts which he purchased had increased dramatically, and he was acquiring a block of heroin every few days from Ferguson.
Duy Le outlined, in his evidence, a number of instances on which he said he met either with Ferguson, with Sadler, or with both of them, for the purposes of trafficking heroin to him. Before he absconded Sadler advised him that he should not attend at court to answer the charges outstanding against him. After he absconded he spoke to Sadler about changing his identity. On one occasion Sadler told him about a scam involving the use of New Zealand licences; subsequently Sadler told him that that scam could not be done because the people who had been a party to it had taken out fraudulent loans and defaulted on payment. After the issue of the warrants Duy Le received information from Sadler and Ferguson about the efforts of Senior Constable Blakeley of the Asian Squad to locate him, and also about any police activity relevant to him. When Duy Le was dealing with a customer or trying to set up a purchase he told Sadler and Ferguson that he needed a bit of assistance, and they would provide information to him about whether it was safe to proceed with the transaction. The trafficking with the Drug Squad effectively ceased in early 2002. In April 2002 (9 April) Duy Le was with Loan Tran in South Yarra when they sold her Honda Civic. On that occasion they were contacted by Sadler and Ferguson, who met them there, and took them for a drive. Sadler and Ferguson told him there was increased police attention focussed on finding him and that he should get out of the State and keep his head low. On 23 April Duy Le was the subject of a CrimeStoppers program on the live media and in the newspaper. Loan Tran contacted Duy Le about it. Duy Le contacted Sadler and explained the situation. Subsequently Sadler telephoned him back and told him it was basically routine and that he should keep his head low. After that date Duy Le left to live in Sydney. On 9 November 2002 he was contacted by Loan Tran who told him that the police had been to see her about the BMW he had sold to Ferguson. Duy Le attempted to contact Ferguson and Sadler. He sent Sadler a text message “Right said Fred”. He had missed some calls on his telephone so he tried to ring Sadler back. The phone on the other end was picked up and then hung up straight away. Soon after that Duy Le received a call from Sadler. Duy Le explained to him the situation. Sadler said he would get back to him. On the following Monday (11 November) Duy Le was contacted by Cox.
Conclusions on corroboration of Duy Le
The Crown has provided a number of tables detailing the evidence which it contends corroborates the Crown case against Cox and/or Sadler. I shall first address the document entitled “Corroboration Details – part ‘A’.” I shall use the same paragraphing as appears on the right‑hand side of the table under the heading “Corroborating Evidence”.
Cheung/Agbayani Bust and 3 August transaction
Items 1 and 2
The Crown seeks to rely on a telephone call from Duy Le to Sadler on 28 July, and on calls by Duy Le to Cox and Sadler on 30 July, and in particular on the fact that neither of those calls were reported or the subject of a diary note. However, there is no evidence that those telephone calls were concerned with the Burwood K‑mart bust. There is no evidence by Duy Le that, at the time those telephone calls were made, he had already told Cox or Sadler of the possible transaction which was to occur on 2 August. For those reasons I do not consider that the lack of any report concerning those phone calls is capable of constituting evidence corroborating Duy Le. In any event, if the jury were to conclude that Duy Le had spoken to Cox or Sadler about the possible transaction which was to occur on 2 August, I do not consider that the failure of Cox or Sadler to record those meetings adds to the probability of Duy Le’s evidence concerning 2 and 3 August, namely, that Cox and Sadler were a party to the theft of heroin on 2 August, which was then passed to him by Cox on 3 August.
Item 3
The Operation Lulie report refers to a meeting between Sadler and Duy Le on 30 July. The Crown submits that that is relevant because Sadler did not make a diary note or submit an information report. For the reasons I have stated above I do not consider that the failure of Sadler to diarise his meeting with Duy Le on 30 July adds to the probability of Duy Le’s evidence that Cox and Sadler appropriated some of the heroin from the 2 August bust.
It was also argued by Ms Spowart that the Operation Lulie report was written by Cox; there is no evidence that Sadler adopted its contents; and therefore it is hearsay evidence against Sadler, as it does not fall within the “Tripodi” principle.[35]
In view of the conclusions which I have reached above it is not necessary for me to express any view on that submission. However, since the Crown relies on the contents of the Operation Lulie report against Sadler, it is appropriate that I do state my conclusions. The Operation Lulie report is relied on by the Crown as evidence of a meeting between Sadler and Duy Le on 30 July 1999. The Crown seeks to rely on that meeting as one fact which, in combination with other facts, gives rise to an inference that Cox, Sadler and Ferguson appropriated some of the heroin seized on 2 August 1999. The Crown case is that the appropriation of heroin on that night by members of the Drug Squad was the starting point of the corrupt relationship between Cox, Sadler and Ferguson and Duy Le. There is reasonable evidence of the existence of such a conspiracy for the purposes of the principles stated by the High Court in R v Ahern.[36] Indeed counsel for the accused have not argued to the contrary. The question then is whether the Operation Lulie report was a document produced by Cox in the furtherance of the conspiracy.[37] In my view the Crown is correct in its contention that the conduct of Cox, Sadler and Ferguson in the course of the operation at Burwood K‑mart on 2 August 1999 constituted conduct by them in furtherance of the alleged conspiracy; and that the Operation Lulie report was a statement prepared for the purposes of that operation and for explaining the roles of Cox, Sadler and Ferguson in it; accordingly the Operation Lulie report constituted a document compiled by Cox in furtherance of the alleged conspiracy.
Item 5
The Crown has relied against Sadler on the evidence of Mr Hill that at 12.45pm on 2 August Sadler told Hill that there was to be a bust, at a location not then known, involving between four and six ounces of heroin. Mr Tovey has submitted to the jury that Sadler was thereby leaving open the opportunity for members of the Drug Squad, who attended the bust, to take for themselves some of the heroin seized in the bust. Ms Spowart has submitted that there is no evidence that Duy Le told Sadler, before 12.45pm on 2 August how much heroin was to be involved in the bust. Sadler’s diary, which has been tendered in evidence, records that at 1.00pm he met with Duy Le and was told that six ounces were expected. While the evidence is unclear as to when Duy Le told Sadler that six ounces were expected, he denied saying to them at any time that he expected between four and six ounces.[38] In my view Hill’s evidence is one circumstantial fact which, in combination with the other circumstantial facts relied upon by the Crown, is capable of being corroborative of the evidence of Duy Le. As such, this item of evidence belongs more appropriately to the group of items collected together as Items 9 to 14 (below).
Items 6 to 8
The Crown relies on these items to corroborate the proposition that at least six ounces of heroin was delivered to Burwood K‑mart, and that Duy Le knew that Cox and Sadler had been told that an order had been placed for six ounces. The first proposition is relevant in order to establish a premise in the Crown argument based on the events of 2 August, namely that more heroin was delivered to the car park than was later accounted for by the Drug Squad. Cheung’s evidence is directly relevant for that purpose. The recording by Cox and Sadler that six ounces were expected is of less relevance, but does have some probative value as to the amount which was delivered to Burwood K‑mart. The circumstance that Duy Le, at 8.00pm at the Burwood K‑mart car park told Sadler and Cox that six ounces had been ordered, is, in my view, also relevant to the proposition whether Duy Le had the opportunity to take heroin for himself. The fact that Duy Le had told Cox and Sadler that six ounces had been ordered would, in my view, weigh in the probabilities as to whether Duy Le was responsible for the ultimate shortfall less than that figure.
Items 9 to 11
The next group of items relate to the proposition by the Crown that drugs were improperly interfered with by the accused during and/or after the K‑mart bust. The first item (Item 9) is the fact that Cox’s day book left blank the spot where the amount of drugs “located” was recorded. It was submitted (on behalf of Sadler) that that omission could not have any logical relevance, because the entry must have been made after Inspector Hill had had the opportunity to sight the drugs which had been seized. However the jury need not accept the evidence that Hill sighted the drugs which had been seized – Hill himself was unable to say that he definitely did, but relied on his usual practice. Further there is no evidence as to when the entry was made in Cox’s day book, or whether Cox, when he made the entry, knew if and when Hill had sighted the drugs. In my view Items 9 and 10 are each capable of being part of the circumstantial material before the jury corroborative of the evidence of Duy Le in this respect. I also consider that Item 11 (Agbayani’s evidence that the police, in the car on the way back to the police station, handled the drugs and he was told not to look) is relevant and potentially corroborative. It was argued that Mr Tovey in his final address had not pointed to that evidence as bearing on the issue whether the police had taken some of the drugs seized on that night. However in my view Mr Tovey, in his final address, did point to Agbayani’s evidence as one possible explanation for the shortfall in the drugs accounted for.
Items 12 to 14
These three items refer to the evidence by Cheung that one ounce of heroin was planted on him. Mr Tovey submitted that that ounce was taken from the amount of drugs seized that night from Agbayani’s vehicle. It was submitted to me by counsel for the accused that even if the jury accepted that one ounce of heroin had been “planted” on Cheung, that was irrelevant to the issue whether the police had themselves extracted some of the heroin seized that night for their own corrupt purposes. It was submitted that Cheung’s claim that one ounce of heroin was planted on him could only be used by the jury in an impermissible way, namely by way of “propensity” reasoning. I do not agree. The Crown case is that there was a discrepancy between the amount of heroin brought to the Burwood K‑mart car park in Agbayani’s vehicle, and the amount accounted for in the prosecution of Agbayani and Cheung. The Crown case, based on Duy Le’s evidence, is that at least one ounce of that heroin was taken from the drugs seized, and handed to Duy Le the next day. In my view the probability of that proposition is enhanced if the jury were to accept that the police who arrested Cheung and Agbayani were prepared to use some of the drugs found in Agbayani’s vehicle to “plant” on Cheung in order to secure his conviction. Such a process of reasoning would not be tantamount to “propensity” reasoning. Rather, the action of the arresting police in those circumstances would be demonstrative of an attitude by them, to the amount of drugs found in Agbayani’s vehicle, that they were entitled to deal with those drugs dishonestly and illegally. I therefore consider that Items 12 to 14 are capable of corroborating the proposition contended for by the Crown, which is to be derived from Duy Le’s evidence, namely, that the accused were a party to the wrongful extraction of some of the heroin seized that night.
Item 16
It is accepted on behalf of both Cox and Sadler that the statements made by Cox and Sadler for the prosecution of Cheung and Agbayani (Exhibits P27 and 28) are capable of corroborating the proposition that Duy Le did not have the opportunity to “skim” drugs for himself on 2 August 1999. As I have already foreshadowed, in my view the evidence that Duy Le told the police, at 8.00pm, that six ounces had been ordered, is also relevant for that purpose.
Item 17
Mr Tovey sought to mount an argument that if the statements by Cox and Sadler were dishonest, that itself would be corroborative of the account of Duy Le. I do not agree. If the jury were to conclude that the statements of Cox and Sadler were incorrect or not honest in respect of the observations of Cox and Sadler as to what occurred in respect of Agbayani’s vehicle, I do not consider that that would corroborate the proposition that Duy Le did not have the opportunity to extract some of the heroin for himself while he was in Agbayani’s vehicle.
Item 18
This item refers to the return of Cheung and Agbayani to the car park at 9.02pm, to calls made by Cheung to Agbayani between 9.04pm and 9.09pm, and to the call by Le to Sadler at 9.06pm. In my view those matters are relevant to the issue whether Duy Le had the opportunity to extract heroin for himself while he was in Agbayani’s vehicle. The proposition has been advanced on behalf of Cox, in final address, that it was never part of the plan between Cheung and Agbayani that Duy Le enter Agbayani’s vehicle. The phone calls by Cheung to Agbayani while Duy Le was in the vehicle are relevant to that issue.
Be Bust
Items 20 and 21
I do not consider that these matters are capable of relevantly corroborating the evidence of Duy Le, namely that late on 26 August 1999 Cox telephoned him, while searching Be’s home, and offered to sell him one ounce of the heroin seized that night. There is independent evidence that Cox telephoned Le at midnight on 26 August, and that at that time he was searching Be’s home. However the fact of the making of that telephone call at that time is, in my view, entirely neutral as to the content of the call. The timing of the call, or the circumstances in which it was made, does not add at all to the probabilities that Cox made Duy Le an offer to sell him heroin that evening.
Kinnear Street
Items 22 to 26
Duy Le gave evidence that on one occasion while he was living in Empire Street, Footscray, Cox visited him in his apartment. Duy Le handed him money for heroin. They then drove to Kinnear Street which was nearby, Cox indicated a bush to Duy Le, and directed him to where heroin was hidden under that bush. Cox then drove off. In final address, Mr Tovey has pointed to an entry in Mr Cox’s diary which records that at 11.45am on 3 September 1999 Cox went to Footscray to meet “SCS4-204” (Duy Le) and an associate – “no value”. Mr Tovey pointed to a telephone call by Cox to Duy Le at 11.52, and to the fact that Cox’s telephone was registered as being in Footscray between 12.47pm and 12.55pm. Mr Tovey also pointed to a telephone call between Cox and Sadler at 12.03pm, a telephone call between Sadler and Ferguson at 12.07pm, and a call from Cox to Duy Le at 12.11pm. The Crown also relies on the fact that, apart from the brief diary note by Mr Cox, no other note or information report was made by Cox as to the substance of the meeting with Duy Le.
Mr Young submitted that the evidence is incapable of corroborating the account of Duy Le because, first, Duy Le’s evidence was to the effect that all corrupt transactions between himself and Cox took place between 3 August and 26 August, secondly, the diary entry was incapable of corroborating the proposition that Cox attended upon Duy Le alone. Ms Spowart also submitted that, in any event, the material relied on by the Crown was incapable of corroborating Duy Le’s evidence that a corrupt transaction occurred between Cox and Duy Le on that day. In my view, the question of the time at which the meeting, now relied on by the Crown, occurred, is not decisive. Much would depend on what the jury were to make of the evidence by Duy Le as to the time frame in which he asserts that drug trafficking took place between himself and Cox.[39] Furthermore, if the jury do construe the evidence of Duy Le as placing that time frame between 3 August and 26 August, it is a matter for the jury whether they regard Duy Le’s recollection as to the time frame as being accurate. The question then is whether there is any evidence independent of Duy Le which adds to the probability as to Duy Le’s account as to what occurred when he met Cox at Empire Street. In my view, the absence of any diary note or information report as to what occurred at that meeting is capable of corroborating Duy Le’s account. It is a matter for the jury what they make of the significance of the absence of any such detailed diary note or information report, in comparison with the type of documentation which has been produced in relation to other operations involving Cox.
King Street meeting
Items 27 and 28
It is common ground that the telephone evidence, and the report by Select Investigations to Singer dated 27 April, are independent evidence of a meeting between Duy Le and Cox in King Street on 27 April 2000. In my view there is evidence capable of corroborating Duy Le’s account as to what occurred at that meeting, namely that Duy Le consulted Cox about the method of changing his identity should he choose to abscond on his bail. That evidence consists of the Select Investigation Services report of 27 April 2000 (part of Exhibit SC64). That report does not contain any reference to any meeting with an informer who might fit the description of Duy Le. Exhibit SC64 comprises a number of reports of Select Investigations which contain a number of references to persons whom the operatives of that company spoke in seeking to locate Mr Singer’s computer. It is a matter for the jury whether they consider the absence of any reference to a conversation with a person such as Duy Le, in the report of April 27, as confirming the account of Duy Le, namely, that the meeting on that day was concerned with matters primarily unrelated to the business of Select Investigation Services, but to Duy Le’s concern about changing his identity.
Bridge Road meeting - 3 January 2001
Items 29 to 41
The Crown points to two calls by Sadler to Cox made at 7.59am and 9.14am. In my view, those calls, in the context of the communications between Sadler and Ferguson, and Ferguson and Duy Le, on 3 January, are relevant. They are an instance of what the Crown has described as “linked” calls, that is, calls between the alleged conspirators at or about a time at which one or both of them had contact with Duy Le.
Silks meeting – 26 June 2001
Items 42 to 42J
Duy Le says that he fortuitously met Cox, Sadler and Ferguson near Silks Restaurant, on an evening on which he was taking Loan Tran’s family to that restaurant to dine. There is independent evidence that Duy Le had a booking for seven persons and dined at Silks on 26 June 2001, and that he paid the bill at 10.43pm. There is independent evidence that Ferguson was present at the Crown Casino that evening. Sadler was in Melbourne. Earlier in the day at 4.58pm he had telephoned Cox; at 9.13pm he called Cox from Melbourne. There were intervening calls between Sadler and Ferguson. Mr Tovey has submitted that the jury are entitled to infer that the three were ringing each other to arrange to meet at Crown Casino that evening. In my view, taken even at its highest, the telephone evidence is insufficient to provide independent corroboration of Duy Le’s evidence that Cox was present, with Ferguson and Sadler, at Crown Casino near Silks Restaurant on that evening. I therefore do not consider that there is independent corroboration of Duy Le’s account of the events of that evening as against Cox.
Similarly, I do not consider that the telephone calls relied on by the Crown, between Sadler and Ferguson, and Sadler and Cox, are capable of providing independent corroboration of Duy Le’s evidence that Sadler was present at the time that he attended at Silks. Notwithstanding Mr Tovey’s submissions, the simple fact is that the call charge records disclose that at 7.46pm Sadler’s telephone was at Keilor, at 8.38pm it was in Melbourne (as distinct from at the casino) and at 9.13pm Sadler’s telephone was still in Melbourne (as distinct from at the casino). It would be speculative for the jury to reason that, on the last two occasions, Sadler’s phone was at the casino, but was diverting to the Melbourne tower. The chronology of events, combined with the fact that at 10.43pm Duy Le paid the bill at Silks, leads to the conclusion that the call charge records do not constitute evidence corroborating Duy Le’s testimony that he met with Sadler at the casino on the evening that he went to Silk’s Restaurant with Loan Tran’s family.
“The blow up, warning Duy Le off in South Yarra, CrimeStoppers”
Items 43 to 49
As against Cox the Crown relies on what it describes as “linked” calls between Sadler and Cox, and Ferguson and Cox, on 12 March 2002 and 14 March 2002. At that time Sadler and Ferguson were both on leave. At that time Newman and Blakeley were both making efforts to locate Duy Le. Mr Blakeley said that in early 2002 he sought to have Duy Le put on the CrimeStoppers program, and he discussed his plans with Sadler.[40] Standing alone, the calls between Sadler, Ferguson and Cox appear innocuous. However it is open to the jury, bearing in mind the background circumstances, to infer that there was a connection between those calls and contacts which Sadler and Ferguson had, or were seeking to have, with Duy Le on the two days nominated. I therefore consider that those two days are capable of being considered by the jury as instances of “linked calls” as contended by the Crown. In this context the Crown has also submitted that Mr Newman had information in respect of an informer “Michael” who had an association with dealings in “ice” and who was dealing with Duy Le; and that Newman told Sadler that he proposed to set up Duy Le through “Michael”. However there was no evidence by Newman to that effect.
6 April 2002
Item 50
I do not consider that the conversations between Cox, Sadler and Ferguson on 6 April 2002 – when Cox was staying at Ferguson’s property at Bambra over the Easter break – could be reasonably considered by the jury to be connected with the events of 8 and 9 April 2002, which are alleged against Sadler and Ferguson. I therefore do not consider that the events of 6 April 2002 constitute evidence independent of Duy Le capable of corroborating his evidence.
9 April 2002
Items 51 to 62
There is independent evidence that Duy Le and Loan Tran were in the South Yarra area during the afternoon of 9 April 2002. There is also evidence of telephone and SMS communication between Ferguson and Duy Le between midday and 12.42pm. At 12.16pm Ferguson’s telephone was in the South Yarra area. There is also evidence of communication by Duy Le to Ferguson at 1.47pm. Those facts are capable of adding to the probability of Duy Le’s account that Ferguson met with him and Sadler on the afternoon of 9 April. The more difficult question is whether there is any independent evidence that Sadler was with Ferguson on the occasion of that meeting. Duy Le’s evidence was that the meeting occurred after he had banked the cheque obtained from the sale of Loan Tran’s vehicle, shortly after 3.00pm. At 4.11pm Sadler had logged onto his computer at the St Kilda Road Police Complex. In final address Mr Tovey referred to two categories of evidence which he submitted supported the proposition that Sadler was present at the meeting with Loan Tran and Duy Le at South Yarra on 9 April. First he referred to a number of calls from a Telstra pay phone opposite St Kilda Road to Duy Le’s telephone on 8 April 2002. In my view the jury would be entitled to infer that it was Sadler who made those telephone calls. On the same day Sadler conducted a name check on Duy Le and Loan Tran on the LEAP system. In the evening he used his mobile telephone to call Duy Le’s telephone. On the next morning (9 April) the Telstra pay phone opposite the St Kilda Road Police Complex made three telephone calls to Duy Le. Following those calls Ferguson sent two SMSs to Duy Le, which was followed, at 12.16pm, by a call from Duy Le to Ferguson. At 12.45pm Sadler, according to his diary, was Code 1 with Ferguson. At that time Ferguson was no longer in the Drug Squad. In my view the jury would be entitled to consider that the attempts to contact Duy Le on 8 and 9 April, the LEAP check on Duy Le by Sadler on 8 April, and the fact that Sadler and Ferguson were working, at one stage, together on 9 April, are facts which, in combination, are capable of corroborating Duy Le’s evidence, that on that afternoon, he met with Ferguson and Sadler in South Yarra.
23 April 2002 – CrimeStoppers
Items 65 to 67
It has been accepted, correctly, on behalf of Mr Sadler, that the records tend to corroborate that Duy Le telephoned Sadler on 23 April. I agree that there is no evidence corroborating the evidence of Duy Le that Sadler later rang him back. The fact that Duy Le was on the CrimeStoppers program on that day is, in my view, sufficient to corroborate Duy Le’s evidence that he telephoned Sadler concerning that topic. Mr Tovey sought to contend that it was also relevant that on 23 April 2002 there were two lengthy calls between Cox and Sadler at 3.09pm and 3.14pm. Logically those calls are not linked to the telephone call which Duy Le made to Sadler at 8.09pm concerning the CrimeStoppers program. Mr Tovey did not rely on them in final address, nor were they the subject of any event chart. I do not consider it would be appropriate for me to specifically bring them to the attention of the jury.
Events of November 2002
Items 68 to 80
Mr Young submitted that there was nothing about the content of the telephone conversation between Cox and Duy Le, on 11 November, which was corroborative of Cox’s involvement in the conspiracy alleged. It seems to me, based on the way that Mr Tovey put the Crown case in final address, that the telephone conversation between Duy Le and Cox of 11 November may be corroborative of two matters relevant to the issue of whether Cox was involved in a conspiracy to traffick heroin to Duy Le. The first matter is the fact of the making of the call by Cox to Duy Le in the context of what had occurred in the previous two days. The relevant events commenced with the visit by the Ceja police to Loan Tran on 9 November at 12.20pm in which they questioned her about the BMW motor vehicle which Duy Le had sold to Ferguson. At 2.36pm, and at 2.49pm, Loan Tran telephoned Duy Le. The jury would be entitled to infer that the subject matter of that telephone call concerned the visit to Loan Tran by Messrs Rodger and Hardy. At 3.53pm Duy Le tried to telephone Ferguson but his telephone did not answer. Between 3.53pm and 3.55pm Duy Le made three attempts to telephone Sadler. At 3.57pm he then sent an SMS message to Sadler “Right said Fred”. At 6.17pm Sadler’s mobile phone retrieved that message. At 6.19pm Sadler’s landline made a two second telephone call to Le. That call was the subject of an intercept. When the person who answered the call said “Hello”, the call hung up. There then occurred a phone call which, the jury were entitled to infer, was made by Sadler to Duy Le at 6.27pm from a Keilor public phone box. In those circumstances, the jury would be entitled to infer that in the course of that phone call Duy Le told Sadler of the visit of the police to Loan Tran. On 11 November Sadler spoke to Ferguson, and then contacted Cox. Again the jury would be entitled to infer that Sadler spoke to Cox because of his contact, on 9 November, with Duy Le. The jury would be entitled to infer that Sadler informed Cox as to the substance of that contact. In those circumstances, the fact that Cox was entrusted by Sadler, and Ferguson, with the information conveyed by Duy Le to Sadler, and with the responsibility of contacting Duy Le, is relevant to and corroborative of, the role which the Crown says Cox was then playing in the conspiracy. In final address Mr Tovey described Cox as the “go to” man.
The second aspect concerns the content of the call between Cox and Duy Le. In cross‑examination Mr Young did not contest Duy Le’s version of what was said in that call. The account given in evidence by Duy Le was a paraphrase of the conversation which he said occurred between himself and Cox. It is a matter for the jury what they make of the account given by Duy Le of that telephone call. In final address Mr Young has made a submission to the jury based on a literal construction of Duy Le’s account. However the jury would also be entitled to take into account the fact that, immediately prior to giving that account to the jury, Duy Le had recounted to the jury his conversation with Loan Tran on 9 November, and his conversation with Sadler on 9 November. In those circumstances the jury would be entitled to infer that Duy Le told Cox about the visit of the police to Loan Tran about the vehicle which had been sold by Duy Le to Ferguson. The fact that Duy Le communicated that information to Cox is, in my view, a fact which the jury are entitled to take into account in determining whether the relationship of Duy Le with Cox was of the nature alleged by the Crown.
Three principal submissions were made on behalf of Sadler in relation to the events of 9 November and following. First, it was submitted that the telephone intercept of the phone call from Sadler’s landline to Duy Le’s mobile phone at 6.19pm was not capable of giving rise to the conclusion that Sadler hung up the phone as soon as he heard Duy Le’s voice. In my view that is clearly a matter for the jury. Secondly, while it was conceded that it was open to the jury to conclude that Sadler had telephoned Le at 6.27pm from the phone box in Keilor, and it was open for the jury to conclude that the call was made from the phone box in order to conceal the fact of that communication, there was no independent evidence as to the subject matter of that call. Accordingly it was submitted that in the telephone calls which followed between Sadler and Ferguson and Sadler and Cox there was no basis, independent of Duy Le, for suggesting that Sadler was endeavouring to conceal the fact that Duy Le had told him of the visit of the police to Loan Tran concerning the vehicle which Duy Le had sold to Ferguson. In my view, the set of circumstances, which I have outlined above, are a basis, independent of Duy Le, for the jury to consider that the evidence of Duy Le is corroborated as to what he told Sadler at 6.27pm. As I have stated the jury are entitled to infer that Loan Tran told Duy Le of the circumstances and reason for the visit; that Duy Le then attempted to contact Sadler about that matter; and thus when Duy Le was telephoned by Sadler, Duy Le told Sadler about it. Indeed in my view the inference is irresistible that that was the subject matter of the conversation which occurred at 6.27pm. The third matter raised on behalf of Mr Sadler relates to the evidence that he had disposed of his mobile phone. It was accepted that that evidence is capable of corroborating Duy Le’s evidence, but it was submitted there is no evidence as to what information would have been located on the telephone. However, in my view (as was accepted by Ms Spowart) the disposal of the mobile phone was capable of being corroborative of the evidence of Duy Le. This is so because the jury would be entitled to infer that Sadler was concerned that if the phone were seized by the police, it might contain or constitute evidence which might implicate him with Duy Le.
Corroboration details – Part “B”
The Crown, in part B of its documentation, has described a number of “linked calls” which were not covered by event charts which were submitted in evidence, nor part of the final address by Mr Tovey to the jury. I agree with Mr Young that it would be inappropriate for me to identify the series of “linked calls” now nominated by the Crown in part B of the documents it has put forward for legal submission. I agree with Mr Young’s submission that if I were to specifically point to those calls, I would be adding upon the Crown’s submission material which the Crown had not itself propounded to the jury. Mr Young accepted, and in my view correctly, that it would be appropriate for me to leave to the jury, in a general sense, the concept of “linked calls” relied on by the Crown, coupled with an appropriate direction as to the nature of that concept, and a direction that the jury must not speculate. In addition the jury should bear in mind the large number of phone calls which occurred between Cox, Sadler and Ferguson during the period under consideration. I also consider that in that context it is appropriate to inform the jury that, as examples of those linked calls, the Crown relied on calls involving Cox on the following days: 5 May 2000; 25 May 2000; 3 January 2001; 22 and 23 March 2002; and 12 and 14 March 2002.
Similarly, in Part D of its documentation the Crown has sought to identify a number of “linked calls” involving Sadler, none of which was specifically put to the jury. In respect of Mr Sadler I shall adopt the same approach as I have outlined above in respect of the linked calls involving Cox. In doing so I shall provide as examples the following linked calls which were referred to in event charts or during the final address by Mr Tovey:
21 and 22 June 2000; 3 January 2001; 23 March 2001; 12 to 17 March 2002.
Part B
Items 12 to 16
In my view the Crown is entitled to rely on the proposition that there were a significant number of telephone contacts between Cox and Duy Le between 1 September and 17 September 1999, and that, apart from diary entries of 1, 3 and 10 September, there was no other record of any communication with Duy Le or information report. Similarly, when looking for corroboration, the jury are entitled to take into account that the diary entries of 1, 3 and 10 September 1999 refer to meetings with Duy Le which were not the subject of any information report.
Part B
Item 22
Corroboration details – Part “C”
[35]Tripodi v R (1961) 104 CLR 1 at 7.
[36](1988) 165 CLR 87.
[37]R v Ahern at 94.
[38]T679.
[39]T357; 644.
[40]T1853.
In this part of this documentation the Crown has put forward events which it says are the subject of evidence capable of corroborating the testimony of Duy Le against Sadler. I have already dealt with a number of those events when considering the matters pertaining to Mr Cox above. The following additional matters were the subject of submission before me. Again I shall refer to the item number contained in the column on the right-hand side of the documentation.
5 May 2000 – Mastercard transaction
Items 3 to 10
It was submitted on behalf of Mr Sadler that Duy Le saw Loan Tran’s banking records before he gave his account as to this transaction, and therefore his account is not independent of the evidence advanced in corroboration. In fact the evidence was that in May 2003 Duy Le was shown the banking records of Loan Tran, in which he identified the withdrawal from Loan Tran’s Mastercard account of a sum of $8,400 on 5 May 2000 as being the date upon which he paid that sum of money to Ferguson and Sadler in exchange for heroin. I do not consider that that means that the whole of Duy Le’s evidence cannot be independently corroborated in respect of that transaction. Loan Tran’s Mastercard account statements could only corroborate the fact of the withdrawal of $8,400 from that account on 5 May 2000; by its nature that fact is not controversial. The question is whether there is evidence independent of Duy Le corroborating his version that he met with Ferguson and Sadler on that day and purchased heroin from them for $8,400. In my view the matters pointed to by the Crown are capable of corroborating that account. In particular there were telephone communications between Sadler and Duy Le before Duy Le and Loan Tran attended at the bank at 10.40am. Sadler telephoned Duy Le at 10.36am. At 10.45am, while Duy Le and Loan Tran were in the bank, Ferguson and Sadler left the Drug Squad offices. At 11.04am there was a nine second call from Ferguson to Duy Le. Ferguson and Sadler’s diaries and information report record a meeting with Duy Le at the casino at 11.30am. Six days later Sadler made two deposits totaling $4,200 into his bank, albeit in different denominations to that withdrawn from Loan Tran’s account. Added together, in my view those facts constitute evidence capable of corroborating the account of Duy Le.
16 May 2000 – laptop computer transaction
Items 11 to 14
In my view the matters relied on by the Crown are capable of rendering the evidence of Duy Le more probable in relation to the transaction in which he stated that Sadler took from him a stolen laptop computer which had recently come into his possession. The laptop was reported stolen on 15 May. On 16 May there were calls from the Drug Squad office to Duy Le’s telephone at 1.24pm and 2.25pm. Sadler’s diary records at 2.30pm “Code 1 with Ferguson to CBD” concerning “Operation Afore”. That operation had already concluded. At 2.40pm there was a short phone call from Duy Le’s phone to Ferguson’s mobile. Duy Le’s phone was then in Albert Park. Ms Spowart is correct in pointing out that Duy Le stated that he met Sadler alone, and not in the company of Ferguson. However, the jury are entitled to infer that at 2.40pm Sadler was still in the company of Ferguson. Furthermore, Duy Le’s telephone was then in the vicinity of the location at which Duy Le stated that the relevant transaction occurred, namely the “usual place”. In my view, taken together, that collection of facts is capable of adding to the probability of the account given by Duy Le.
25 May
Items 15 to 24
It was submitted on behalf of Sadler that Duy Le gave no evidence of any contact with either Ferguson or Sadler in relation to 25 May, except for the evidence that he telephoned Sadler from the bedroom of his Warrigal Road apartment when he thought he sighted Blakeley. The Crown has not put forward the events set out at Items 15 to 24 as corroborating that contact; rather the Crown relies on those events as more broadly supporting the proposition that Cox, Sadler and Ferguson supported Duy Le’s failure to appear at court that day, and to that end Sadler and Ferguson sought to give the false impression that they were looking for Duy Le. Duy Le did give evidence that he had been encouraged by Sadler not to attend court on 25 May, and that thereafter Ferguson and Sadler assisted him to evade arrest. The matters referred to by the Crown in relation to 25 May are capable of corroborating that evidence, albeit that they are not capable of corroborating the specific events which Duy Le says occurred that day.
5 June 2000
Items 4 and 5
In re‑examination, Duy Le gave evidence that he met with Sadler in the Collingwood/Fitzroy area and conducted a drug transaction with him on 5 June. However his recollection of that meeting was prompted and aided by reference to the section of the master chart which referred to 5 June. It is accepted by Mr Tovey that in those circumstances the telephone call charge records could not corroborate the allegation of a drug transaction occurring on that day. Nonetheless, I accept the Crown’s submission that the series of telephone calls referred to at Items 25 to 35 are capable of corroborating the evidence of Duy Le that there was, during that time period, communication between himself and Sadler as to what was happening to him in respect of the warrants. Further, the movements of the telephones of Duy Le and Sadler between 12.40pm and 1.50pm are capable of corroborating Duy Le’s evidence that during that period of time he met with Sadler.
I do not consider that the telephone call charge records relating to 5 June are capable of corroborating Duy Le’s evidence that on the morning he failed to attend court on the Drug Squad charges (25 May 2000), he thought he saw Blakeley in the vicinity of his home in Warrigal Road and telephoned Sadler, who immediately rang him back, and confirmed that it was not Blakeley who he had seen. The date, time and location of the calls, as disclosed in the call charge records, are not capable of corroborating that point. As I have stated, the telephone calls which occurred on that day are capable, however, of corroborating the more general point made by Duy Le in his evidence, that during that period of time he was in communications with Sadler, and that one aspect of that communication concerned the activities of Blakeley in seeking to track him down.
“Dennis” meeting and telephone calls 21 – 22 June 2000
Items 37 to 62
In my view the matters referred to by the Crown are capable of corroborating linked contact between Ferguson and Duy Le, and between Ferguson and Sadler, and also are capable of giving rise to an inference of a meeting between Sadler and Duy Le at 12.15. I propose to leave those two dates as instances of “linked calls” involving Sadler, Ferguson and Le.
VL Commodore transaction
Items 63 and 64
Ms Spowart is correct in submitting that the fact that Be knew that Sadler owned a VL Commodore is insufficient to constitute evidence corroborative of the transaction alleged by Duy Le. Duy Le gave evidence that he had the VL Commodore on other occasions. In reply Mr Tovey conceded that this was correct, and submitted, correctly, that Duy Le’s knowledge of Sadler’s private motor vehicle is relevant to the relationship between Sadler and Duy Le.
Ferguson purchase of Landcruiser for Sadler
Items 65 to 69A
It was conceded on behalf of Sadler that the fact that Ferguson purchased a Landcruiser for Sadler is capable of being corroborative of the evidence of Duy Le. In my view that concession is correct. In this context a submission was also made by Ms Spowart in relation to the intercepted telephone conversation between Sadler and his brother (call No. 402 on 14 November 2002). In that conversation Sadler told his brother that he put his money through Ferguson’s account because Ferguson obtained an “extra discount for being a farmer”. The Crown relied on that as being an untruthful explanation given by Sadler to his brother as to why it was that the purchase of the Landcruiser was funded by Ferguson. It has been submitted that there is no evidence that Ferguson did not obtain any such discount by reason of being a farmer. However the evidence of Mr Flynn, of Blunt Toyota, was that he negotiated with Sadler, not Ferguson. Further, the contract of sale (Exhibit P23) contains no reference to any discount. In those circumstances in my view the jury would be entitled to conclude positively that a discount was not obtained because Ferguson was a farmer.
13 and 14 November 2000
Items 70 to 92
It was correctly accepted by Ms Spowart that the events of those two days, in so far as they related to Sadler, are instances of “linked calls”, in other words, of contacts between Sadler and Ferguson at a time relevant to meetings and communications between Ferguson and Duy Le.
The Teak Room transaction – 20 March 2001
Items 94 to 101
Mr Tovey has accepted that the matters which he pointed to are, at most, consistent with the account given by Duy Le of a meeting with Sadler at the casino. In my view those matters do not add to the probability of Duy Le’s account. I therefore do not consider them capable of corroborating Duy Le’s evidence.
Corroboration details – Part “D”
Items 1 to 6
Linked calls. I have already dealt with this matter above.
Sadler LEAP checks
Item 7
Ms Spowart submitted that there was only a limited amount of information which Sadler could derive from a LEAP check which would be of use to Duy Le. However as Mr Tovey pointed out the LEAP checks were capable of revealing to Sadler information such as which addresses were associated with Duy Le; which vehicles were associated with Duy Le; whether Loan Tran’s address was linked with Duy Le’s address; and whether anyone else had Duy Le on LEAP alert or had been checking him. In my view the LEAP checks are relevant and potentially corroborative in so far as they are linked with communications by Sadler either with Duy Le, or alternatively with Ferguson who was in communication with Duy Le. The following LEAP checks fall into that category:
27 June 2000; 25 September 2000; 26 September 2000; 3 January 2001; 7 March 2001; 8 April 2002.
Phone calls – general
Items 8 to 12
It is correctly accepted on behalf of Sadler that the 95 calls between Sadler and Duy Le after the issue of the warrant are corroborative. I also consider that the 31 occasions when Ferguson spoke to Duy Le when according to their diaries Ferguson and Sadler were in the same place (Item 9) are capable of being corroborative. I also consider that the fact that Sadler did not use his mobile telephone to call Duy Le after 8 April 2002 (Item 10) is a circumstantial fact which, in combination with others, is capable of being corroborative. It is a relevant fact in association with other parts such as the pattern of phone calls which occurred before then, and with the evidence of Blakeley that he informed Sadler that he was intending to put Duy Le on CrimeStoppers and with the disposal by Sadler of his mobile phone after 9 November 2002. The evidence that Sadler did not use the office extension to call Duy Le after 10 October 2000 is also capable of being corroborative, but I shall remind the jury that there are no records in relation to Sadler’s office extension for the period 10 March 2001 until 20 April 2002.
Association of Sadler with Cox and Ferguson
Item 13
This matter is capable of being one circumstance which, in combination with others, is capable of corroborating the evidence of Duy Le. It was submitted on behalf of Sadler that there was no evidence that Sadler had been to Bambra or Lara after the improvements had been made to Lara, so that Sadler would have known of Ferguson’s conspicuous increase in wealth. In my view it is a matter for the jury to infer whether the closeness of the relationship between Ferguson and Sadler was such that Sadler would have known of such matters. Certainly the intercepted telephone conversation between Sadler and Cox on 13 November indicates a degree of familiarity by Sadler with Ferguson’s affairs.
Financial
Items 14 to 17
It is accepted by Ms Spowart that the items referred to by the Crown are capable of corroborating the evidence of Duy Le against Sadler.
Corroboration details – Part “E”
Neither Mr Young nor Ms Spowart contended that any of the items pointed to in this part of the Crown’s written outline were incapable of corroborating Duy Le’s evidence as to the participation of Ferguson in the alleged conspiracy. In my view each of the items are capable of corroborating that aspect of Duy Le’s evidence.
Corroboration details – Part “F”
Sadler gambling
Items 1 to 4
It was submitted on behalf of Mr Sadler that the casino records, which show him recording a loss in the year 2000, and losses in late 2000, are not capable of corroborating the evidence of Duy Le. It was submitted that the casino records are limited in their probative worth. They are not accounting documents. They only record transactions undertaken by a patron using his or her card. Further, they do not say anything about any other gambling in which Mr Sadler may have indulged. Nonetheless, I do not consider that the documents are entirely lacking in any probative value relevant to the issue of Sadler’s financial betterment. They are part of the material which I consider the jury are entitled to take into account in its determination whether the evidence of Mr Curtin, in relation to Sadler’s financial betterment, corroborates the evidence of Duy Le. It is for the jury to assess the probative effect of the evidence constituted by the gambling records. Put simply, the Crown argument is that it would be an extraordinary coincidence if Sadler only won, when gambling with cash, whereas he lost, when gambling using his card. In my view it is open to the jury to take the gambling records of Sadler into account in that way.
Ferguson financials
Items 5 to 9
In my view the evidence of Mr Curtin relating to Ferguson’s unexplained cash payments and cash deposits is capable of corroborating the evidence of Duy Le as to the participation of Ferguson in the conspiracy. I also consider that the comparison in the peaks of cash payments and cash deposits between Sadler and Ferguson is a relevant and corroborative fact in relation to Sadler. In the same way I consider that the items referred to as “Sadler cash pattern” (Items 10 to 11) are also relevant for that purpose.
Contact with Duy Le – 26 August 1999 to 24 May 2000
Item 12
I accept Mr Young’s submissions that this item is not put forward as material capable of corroborating Duy Le, but rather is put forward as a response to Mr Young’s final address. The contacts themselves, before the issue of the warrant, do not per se add probability to Duy Le’s evidence that there was a corrupt relationship between himself and Cox, Sadler and Ferguson during that time period.
Ferguson phone calls
Item 13
It is clear that the large number of phone calls and SMS messages between Ferguson and Sadler after the issue of the warrant until 30 November 2002 (565 phone calls and 19 SMS messages) are relevant and corroborative of Duy Le’s evidence as to the participation of Ferguson in the conspiracy.
CORROBORATION OF LOAN TRAN
Counsel have not yet addressed me on the issue as to whether there is evidence capable of corroborating the testimony of Loan Tran. I shall defer ruling on that issue, although no doubt the conclusions which I have reached in this ruling will significantly dictate the conclusions I reach in relation to Loan Tran.
3
0