R v Cox & Sadler (No 4)
[2006] VSC 60
•28 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| STEPHEN COX AND GLENN SADLER |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 February 2006 | |
DATE OF RULING: | 28 February 2006 | |
CASE MAY BE CITED AS: | R v Cox and Sadler (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 60 | |
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CRIMINAL LAW – Conspiracy to traffick heroin – Particulars of conspiracy – Obligation of Crown to prove conspiracy charged – Relevance of particulars.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | 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 |
HIS HONOUR:
The trial in this matter is now due to commence on 8 March. The accused have submitted that I should rule that, on the Crown case as currently particularised, the jury could only convict either accused if it is satisfied beyond reasonable doubt of the evidence of Kenneth Lai as to the corrupt approach made to him by the accused in the earlier part of 1999.
In the course of submissions I expressed a strong reluctance to make such a ruling, at least until I head heard the opening the Crown to the jury. The substance and nature of the charge may well be affected, and take shape, according to the manner in which the case is opened to the jury. Any ruling given by me at this stage would be based solely on the statement of the charge contained in the presentment and in the particulars provided by the Crown. The argument before me proceeded along similar lines to a “pleading summons” in a civil suit. Any ruling which I might give at this stage would be restricted to a ruling based solely on the definition of the charge against the accused contained in the count in the presentment and in the particulars.
However, and notwithstanding that reluctance, I have decided to deliver the ruling at this stage. All the parties have pressed upon me that it is desirable that I do so. The forthcoming trial will be quite lengthy. It would be of assistance to the parties to know, at this stage, the construction which I place on the charge and the particulars, and in particular to know whether, based on that construction, it is necessary that the allegations made by Lai be proven beyond reasonable doubt in order to sustain that charge. I have presided at the trial of the alleged co‑conspirator Ferguson and am quite familiar with the issues which are to be tried. Accordingly, albeit with some reluctance, I accede to the request of the parties to make my ruling at this stage. It must be understood that the ruling is based upon the formulation of the charge in the presentment and in the particulars. In addition, I have reference to the statements of Kenneth Lai and Duy Le contained in the depositions, in order to understand the relevance of the evidence of those persons to the argument which has been presented. In that context, the evidence of both those witnesses at the trial of Ferguson was, in broad terms, consistent with the tenor of the witness statements, although the evidence of Lai was of less significance in the trial of Ferguson than it might be in the forthcoming trial of Cox and Sadler.
Background
The accused are charged by presentment on one count, namely that they, at Melbourne between 1 April 1999 and 6 December 2002, “ … agreed together with Ian Ferguson and with others to pursue a course of conduct which would involve the commission of an offence by them namely trafficking in a drug of dependence namely heroin in a quantity that was not less than the commercial quantity applicable to that drug of dependence.”
The Crown has provided particulars of the overt acts which it intends to prove in relation to the conspiracy. Those overt acts include an allegation that between 1 April 1999 and 30 July 1999 the accused offered to supply Lai with heroin in return for a commission from the profit of the sale of that heroin.
In the course of pre‑trial argument last year, before the trial of Ferguson, I directed the Crown to provide particulars of the manner in which the Crown intended to put the case of conspiracy against the accused and Ferguson. In response the Crown provided a document entitled “Summary of how the Crown puts the case of conspiracy against Stephen Cox, Glenn Sadler and Ian Ferguson”. That document stated:
·“The Crown allege that between April 1999 and December 2002, Stephen Cox, Glenn Sadler and Ian Ferguson (who were members of the Victorian Drug Squad formed into a special unit to investigate heroin trafficking) entered into an agreement to traffick in a commercial quantity of heroin for gain by using their positions in the Victorian Drug Squad.
·This agreement envisaged the following:
-Obtaining heroin when opportunities arose during the course of investigations conducted by these police officers, for example:-
(i)keeping some of the heroin seized during arrest situations and;
(ii)obtaining heroin from sources known to the conspirators from information available to them as investigators.
-Supplying the heroin to persons they could trust such as informers (persons who had been arrested and charged but had been released back into the community on bail upon the understanding that they would provide police with information about drug trafficking and the police would provide evidence of their co-operation to the courts on their subsequent pleas).
-Providing protection to these informers from other police interference while carrying out their illegal activities.
-Funding purchases of heroin in part from thefts of money when opportunities arose.
·It is not alleged that Kenneth Lai, Duy Le or McCabe joined this particular conspiracy.”
The background of this matter has been outlined by me in an earlier ruling.[1] In summary, in early 1999, Lai was arrested on charges of trafficking drugs. After his arrest he was recruited by Cox and Sadler as an informer to the Drug Squad. In that capacity Lai provided information which assisted to set up the arrest of Duy Le. In the meantime, Lai alleges that Cox and Sadler proposed to him that he sell heroin on their behalf, in return for a share in the profit of such drug trafficking. Lai states that he did not accept that proposal. Duy Le was arrested on 21 April 1999. After his arrest he was recruited as an informer to the Drug Squad. In that capacity he set up a successful drug bust on 2 August 1999. Duy Le states that on the next day Cox handed to him one ounce of the heroin which had been seized during the arrest conducted the previous evening, and that subsequently Cox commenced to sell him heroin on a regular basis. After a time Sadler commenced to sell him heroin. Cox resigned from the police force in late 1999. Duy Le maintains that thereafter Ferguson and Sadler continued to supply him with drugs. On some occasions either Ferguson or Sadler supplied him with drugs, and on other occasions the two of them did so together. Duy Le alleged that the corrupt relationship with the Drug Squad continued until early 2002 when he moved to Sydney. He was arrested in Sydney in December 2002.
[1]See R v Cox and ors (Ruling No. 4) [2005] VSC 225R.
Originally Cox and Sadler were jointly presented with Ferguson on the charge of conspiring to traffick heroin between 1 April 1999 and 6 December 2002. On 21 July 2005 I ruled[2] that the charge of conspiracy be tried jointly against Cox and Sadler but separately to the charge of conspiracy against Ferguson. In the same ruling I rejected the submission by each accused that Lai’s evidence be excluded from their trials. For the reasons which I set out in paragraphs 30 to 45 of that ruling I concluded that the evidence of Duy Le and Kenneth Lai, as contained in the depositions, was capable of supporting the existence of the one conspiracy charged in Count 1 of the then presentment.
[2]Ibid.
After the conclusion of Ferguson’s trial, counsel for Cox and Sadler submitted that I should revisit my earlier ruling concerning the admissibility of Lai. It was argued that during the trial of Ferguson the Crown had significantly changed its position as to the relevance of the evidence of Lai. I rejected that submission and ruled that the evidence of Lai is admissible in the forthcoming trial.[3] In the course of submissions before me in relation to that matter, Mr Tovey QC, who appears with Mr D. Brown for the Crown, confirmed that it would be the Crown case that the conspiracy alleged in the presentment started with the approach by Cox and Sadler to Lai.[4]
[3]R v Cox and ors (Ruling No. 9) [2006] VSC 44R.
[4]T50, 51.
Submissions
Mr Young, who appears for Cox, and Mr Georgiou, who appears with Ms Spowart for Sadler, have each submitted that a jury could only convict their clients on the charge of conspiracy as framed in the presentment and as particularised, if the jury was satisfied beyond reasonable doubt of the allegation of Lai as to the corrupt approach to him by Cox and Sadler, as well as being satisfied beyond reasonable doubt as to the evidence of Duy Le relating to the corrupt dealings between him and members of the alleged conspiracy. It was submitted that if the jury was not satisfied beyond reasonable doubt of the evidence of Lai as to the approach to him by Cox and Sadler, it must acquit the accused of the charge of conspiracy, notwithstanding that the jury might, nonetheless, be satisfied of the allegations of Duy Le as to the trafficking of drugs to him by Cox, Sadler and Ferguson.
The submissions on behalf of the accused focussed on two aspects of the count of conspiracy and the particulars which I have set out above. First, it was pointed out that the conspiracy was alleged to have occurred between 1 April 1999 and 6 December 2002. Secondly, it was noted that the conspiracy alleged in the particulars was described as a conspiracy which envisaged (inter alia) “ … supplying the heroin to persons they could trust such as informers … “. It was submitted that the date of the commencement of the conspiracy – 1 April 1999 – could only be a reference to the Lai allegations. Lai alleged that the approach to him by Cox and Sadler occurred in the earlier months of 1999; on the other hand the first alleged corrupt approach to Duy Le (by Cox) did not occur until 3 August 1999. Secondly, it was submitted that the use of the plural (“persons … such as informers”) denotes an agreement to deal with a plurality of persons, as distinct from an agreement to deal with just one person. It was submitted that such a conspiracy could not be proven solely by the evidence of the trafficking of drugs to Duy Le. It was submitted that it was necessary that the Crown prove corrupt dealings between members of the conspiracy and at least two persons who were informers. Thus, Mr Young submitted:
“The Crown relies upon the evidence of Kenneth Lai to prove, in combination with the evidence of Duy Le, a plurality of informer targets during the between dates period alleged. No other witness, save Lai, provides the quantum leap from a single object conspiracy to which Duy Le would be a co-conspirator, or, at least, the only object of the conspiracy, and the assertion by the Crown of a plurality of targets or objects. Second, Kenneth Lai alone provides a duration which extends the period of the conspiracy backwards in time from 2 August 1999 to the commencement date, 1 April 1999. There is not an overlap during that period and the Crown says that neither witness fills that substantial temporal gap.”[5]
[5]T163-4.
In response, Mr Tovey submitted, first, that the submissions by the accused misconceive the role of particulars. He submitted that particulars are provided to allow the accused to know, with a degree of precision, the case which the Crown is putting against them. The particulars affect what evidence is and is not admissible. However he submitted that the particulars do not affect the nature of the offence charged, which is the offence described in the presentment. Thus he submitted that the evidence of Duy Le was sufficient to prove the charge specified in the presentment. Secondly, Mr Tovey submitted that, in any event, the submission made on behalf of the accused was based on a misconstruction of that part of the particulars which stated that the agreement envisaged (inter alia) the supply of heroin “ … to persons they could trust such as informers … “. He submitted that the use of the plural (“persons” and “informers”) was not intended to denote a conspiracy to deal necessarily with more than one person. Rather the use of the word “informer” was generic and descriptive, in order to limit the conspiracy to one which involved people of the ilk of Duy Le or Kenneth Lai. He submitted that if necessary the Crown would amend the particulars so that the agreement alleged envisaged supplying heroin to “a person or persons they could trust such as an informer or informers”. Mr Tovey submitted that, if the Crown is required to prove the charge defined in the particulars, it is sufficient for the Crown to prove the Duy Le allegations beyond reasonable doubt, without also being required to prove the allegations by Lai beyond reasonable doubt.
In the course of submissions, I raised the question whether it was premature for me to rule on the submissions which had been made to me. In particular I was concerned that, if I accepted the submissions of the accused that, in order to prove the conspiracy charge, the Crown must prove a conspiracy to deal with a plurality of informers, it would nonetheless be a matter for the jury whether, on the evidence, the jury might infer the existence of that conspiracy, if the jury was not satisfied beyond reasonable doubt of the evidence of Lai. It is very much a matter for the jury, and not the judge, to determine what inferences are to be drawn from the facts found by the jury.[6] However Mr Tovey told me that the Crown concedes that, for the purposes of this point, a jury could not conclude from Duy Le’s evidence alone that there was a “multiple informer conspiracy”.[7] Accordingly he submitted that I should rule on the question raised for me based on that concession, and based on the assumption that he will open the case to the jury in conformity with the particulars provided to the accused and which I have set out at paragraph 6 above.
[6]See for example Attorney-General’s Reference (No. 1) of 1983 [1983] 2 VR 410; R v Cengiz [1998] 3 VR 720 especially at 722 (per Ormiston JA) 737 – 738 (per Harper AJA).
[7]T217.
Legal Principles
The principles which are applicable to this issue may be summarised as follows:
(1)It is of course fundamental that the Crown must prove the offence which it has charged against the accused.
(2)As commonly occurs in cases such as this, the allegation of conspiracy in the presentment is drafted in a broad and general form. The authorities have emphasised that it is important, in such a case, that the Crown provide adequate particulars to enable the accused and the trial judge to properly understand the nature of the conspiracy which is alleged. Thus it is not always sufficient for the Crown only to provide particulars of overt acts, from which the alleged conspiracy is to be inferred. It is also necessary for the Crown, in many cases, to provide particulars of the nature and scope of the conspiracy which the Crown alleges is to be inferred from those overt acts.[8] Thus, in R v Mok,[9] Hunt J (with whom McInerney and Allen JJ agreed) stated:
[8]See Gerakiteys v R (1984) 153 CLR 317 especially at 323 (Murphy J), 333 (per Deane J); R v Partridge and ors (193) 30 SR (NSW) 410 at 412.
[9](1987) 27 A Crim R 438 at 441-2.
“In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address – at the latest. He is not entitled simply to open the overt acts of which particulars have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial. The present case is a very good example of the sorry consequences of the Crown’s failure to give proper particulars.”
It was for those reasons that I directed the Crown to provide the particulars, which are set out in paragraph 5 above.
(3)The particulars provided by the Crown are not, per se, essential elements of the conspiracy charged.[10]
(4)However the particulars do not only serve to define the case which the Crown is putting so as to give the accused and the trial judge proper notice of that case. The particulars give definition to the nature of the charge of conspiracy which the Crown alleges in the presentment. It is that conspiracy which is the foundation of the offence charged, and which the Crown thus undertakes to prove against he accused.[11]
(5)It is not necessary that the Crown prove exactly the charge defined in the presentment and the particulars. It is sufficient if the conspiracy proven by the Crown is not substantially different to the conspiracy which is so alleged by the Crown.[12]
(6)Thus it is not sufficient for the Crown to prove a conspiracy which is substantially different to the conspiracy alleged against the accused, if, in doing so, the Crown fails to prove, in substance, the conspiracy which is alleged.[13] However, the Crown may prove the conspiracy charged against the accused, notwithstanding that, in doing so, it also incidentally proves the existence of another conspiracy which is not the subject of the charge.[14]
[10]Caratti v R [2000] WASCA 279 at [73]; R v Hancock and ors [1996] 2 Cr App R 554 at 559-60; Walsh v R [2002] VSCA 98 at [57-58] (per Phillips and Buchanan JJA).
[11]Gerakiteys v R (above); Saffron v R (No. 1) (1988) 36 A Crim R 262.
[12]Saffron v R (above) especially at 295-6 (per Hope JA); R v Lacey (1982) 29 SASR 525 especially at 532-3 (per King CJ).
[13]R v Griffiths and ors [1966] 1 QB 589 especially at 596-7, 599; Gerakiteys v R (above).
[14]R v Greenfield [1973] 1 WLR 1151 especially at 1157.
The principles which I have just summarised make it clear that, contrary to the submission by Mr Tovey, it is not sufficient that the Court confine itself to the statement of the charge in the presentment, in determining the substance of the conspiracy with which the accused have been charged. The issue for me is whether, if the jury were to reject the evidence of Lai, any conspiracy found by the jury would be “substantially different” to the conspiracy charged against the accused and defined in the presentment and the particulars.
In this context it is necessary for me to refer, in a little detail, to some of the authorities in which this question has been considered.
In R v Lacey,[15] the accused was jointly charged with two other men with the crime of conspiring to extort money from various bookmakers. The particulars of the offence, which were set out in the information, charged the accused and his two co‑conspirators, between two dates, with conspiring to extort money from three named individuals – Barber, Walker, and White – “and other persons”. The accused was convicted. One of the grounds of appeal was that the trial judge erred in failing to adequately direct the jury whether it was necessary for the Crown to prove that the three conspirators agreed to obtain money from the three individuals named in the information plus others. In the course of his judgment, King CJ referred to the principle that, where a conspiracy is charged to effect more than one unlawful purpose, the jury may find the accused guilty of the conspiracy to effect all of the improper purposes or only some of them.[16] His Honour then stated:
“Although there may be a verdict of guilty notwithstanding that the conspiracy proved is to effect only some of the improper purposes, there cannot be a verdict of guilty if the conspiracy proved is a substantially different conspiracy from that alleged.”[17]
[15](1982) 29 SASR 525.
[16]R v Ongley (1940) 57 WN (NSW) 116 at 117 (per Jordan CJ); see also Gerakiteys v R (above) at 333-4 (per Deane J).
[17]At 532.
In Lacey, counsel for the appellant had fastened on one aspect of the direction to the jury by the trial judge, which suggested that the jury could convict the accused if the jury were agreed that any one of the alleged bookmakers should be the subject of the extortion. King CJ observed:
“I am inclined to agree that a conspiracy to extort from a particular individual would be substantially different to a conspiracy to extort from illegal bookmakers amongst whom were the three named individuals. The phraseology of the direction complained of was unfortunate. I do not think, however, that, in the light of the other clear directions and of the evidence, there could be any confusion in the minds of the jury.”[18]
[18]At 533; see also Caratti v R (above) at [50-51].
Lacey’s case is, self‑evidently, quite different to the present case, for the purposes of the question which I must determine. In Lacey, the charge was one of extorting money from three named bookmakers and others. The question there was whether a conspiracy to extort money from only one of those individuals would have been substantially different from the conspiracy charged. Here, by contrast, the charge (as particularised) does not allege a conspiracy to traffick heron to any specified individual. As particularised the charge is one of conspiring to traffick heroin to one or more of a certain class of persons, namely, persons such as informers. The question is whether, if Lai’s evidence were not accepted, any conspiracy found by the jury would be substantially different to that conspiracy which has been charged.
In Saffron v R,[19] Hope JA adopted and applied the formulation of principle stated by King CJ in Lacey, that the conspiracy proven must not be substantially different to that specified in the charge and in the particulars. In that case the accused was charged with conspiring with Anderson to defraud the Commonwealth between 1969 and 1981. The Crown alleged that Saffron and Anderson had embarked on a scheme together which involved understating the taxable income of a number of businesses with which the accused was associated. The particulars of the charge recited that, during the relevant period, the accused was associated with five named enterprises, including the “Venus Room” and the “Carousel Cabaret”. The accused had become associated with the five named businesses at various times during the period charged. The first business with which he was associated was the Venus Room. The second business was the Carousel Cabaret. In opening the case the Crown prosecutor stated to the jury that the “ … places which will be of particular importance in the course of this trial are … the Venus Room and … the Carousel Cabaret … “. He named the other three places. He stated, “In the scale of things these other enterprises are of minor significance only and the places about which you will hear most are the Venus Room and the Carousel.”[20] The accused was convicted. At the request of the parties the trial judge reserved a number of questions for the Court of Criminal Appeal. One question was whether the trial judge had erred in law in directing the jury that the Crown had to satisfy the jury beyond reasonable doubt that the Crown had “substantially proved the case presented to you and that I read in the opening … “. Hope JA (with whom Clarke JA and Hunt AJA agreed on this point) held that the trial judge did not err in so directing the jury. His Honour adopted the statement of principle by King CJ in Lacey, to which I have referred. Hope JA then stated:
“In the light of these authorities I have concluded that it was open to the jury to convict Saffron even though not satisfied beyond reasonable doubt that the conspiratorial agreement was extended to, or implemented in respect of, each of the five businesses, provided that the conspiracy (including its implementation) which the jury found was not substantially different to that which the Crown charged and sought to prove. It is to be remembered that the particular question is not directed to any variation of the objects of the conspiracy charged; the object remained the same at all times. Nor does it relate to any alteration of the parties to the conspiracy. It concerns implementation. As it seems to me, the obligation on the Crown as to what it must prove in relation to a charge of conspiracy should not be and is not more onerous in respect of allegations as to the implementation of the conspiracy than it is in respect of allegations as to the object of the conspiracy.”[21]
[19]Above.
[20]At p.264.
[21]Pages 295-6.
Hope JA concluded that, in order that the conspiracy found by the jury not be substantially different from that alleged, the jury must find that the conspiracy had been implemented in relation to both the Venus Room and the Carousel. His Honour found that, on a proper understanding of the trial judge’s directions, bearing in mind the atmosphere of the trial, the trial judge had given such a direction to the jury.[22]
[22]Pages 297-8.
Mr Georgiou, in one of his submissions, placed some emphasis on the approach by the New South Wales Court of Appeal in Saffron. He submitted that the issue relating to Lai’s evidence was relevant, not only to whether the Crown proved the conspiracy alleged by it, but also as to whether it proves the implementation of the conspiracy as alleged, in the absence of Lai’s evidence.
At first blush, the reference by Hope JA to the implementation of the conspiracy, as distinct from the formulation of it, might be said to be at odds with the proposition that the gist of the crime of conspiracy consists in the agreement, and not in the execution of the agreement. The crime is committed when the agreement is formed.[23] In the context of the question which I need to determine, the focus must, logically, be on the ambit of the conspiracy, as distinct from the acts which were carried out in execution of it.
[23]R v Ongley (above) at 117; R v Lacey (above) at 532.
Indeed, such an approach was adopted by the Full Court of Western Australia in Mylonas v R.[24] In that case the accused were charged, between two dates, with conspiring together to cultivate cannabis with the intent to sell or supply it to another. Particulars of the overt acts supplied by the Crown included an allegation that the accused had cultivated cannabis on two properties. The accused appealed their convictions on the ground (inter alia) that the trial judge erred in failing to instruct the jury that, if it did not find that the evidence established a conspiracy to cultivate cannabis at both premises, it must acquit the accused. Burt CJ rejected that ground of appeal. His Honour stated:
“In my opinion the Crown case was, and the indictment should be understood to be charging, that the appellants had agreed or conspired to cultivate cannabis between the stated dates. The agreement was to be inferred from the overt acts and in Ellis’ case to be found from his out of court statements. It was for the jury to find the overt acts as primary facts and it was for them to decide whether as found they sustained by way of inference a finding as to the agreement. It matters not that some of the members of the jury found certain overt acts proved and certain of the other overt acts proved. It was enough that each of them upon the overt acts which he found proved reached by way of inference from them and to the required standard of persuasion the conclusion that each appellant was party to the agreement.”[25]
[24](1985) 20 ACR 214.
[25]Pages 217-218.
The solution to the apparent tension between the decision in Saffron and the decision in Mylonas may lie in the nature of the conspiracy alleged in Saffron. While the crime was committed once the agreement to defraud the Commonwealth was formulated, nonetheless the agreement, and thus the crime, continued during the period of its implementation. The businesses to which the agreement attached in Saffron were not in existence at the time of the original formulation of the agreement. Saffron acquired his interest in those businesses at various stages during the 12 year period alleged in the presentment. In this context, the principles stated by Lord Pearson in DPP v Doot[26] are relevant, where his Lordship stated:
“When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place … But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it has been performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be.”
[26][1973] AC 807 at 827. See also Caratti v R (above) at [63 to 65].
For the purposes of the question which I need to determine, the distinction between the scope of the conspiracy and its implementation is relatively academic. In either case, the question which I need to decide is whether non-acceptance by the jury of the evidence of Lai would render the conspiracy particularised by the Crown substantially different to any conspiracy found by the jury either in its scope or in its implementation.
In determining the question posed by the parties, I accept that the particulars do bear the meaning contended for by Mr Tovey, namely, that the conspiratorial agreement alleged by the Crown envisaged (inter alia) the supply of heroin to a person or persons who they could trust such as an informer or informers. The particulars are not to be subjected to a highly technical construction. They must be construed realistically and sensibly in the context of the issues in this case. The construction contended for by Mr Tovey is a common sense construction. It would be strange if it were a necessary element of a conspiracy that it required the inveigling of more than one informer, if in fact the conspirators, in executing the agreement, were able to fulfil the purposes of the conspiracy by trafficking the heroin to the one informer. Thus I accept that the particulars convey the meaning described by Mr Tovey. If in fact they do not bear that meaning, I accept that that is the meaning and scope of the particulars which the Crown intends to open to the jury. In order to remove any further room for misunderstanding I direct that the Crown provide an amended summary to the accused in order to make plain to the accused the meaning contended for by the Crown.
To some extent that construction of the particulars meets one of the main points pressed by counsel for the accused, namely, that the agreement particularised necessarily envisaged the supply of heroin to a plurality of informers, as distinct from the supply of heroin to one informer alone. However it does nonetheless leave open further questions which need to be resolved.
The first question relates to the specification, both in the presentment and in the particulars, that the conspiracy took place between April 1999 and December 2002. If that aspect of the particulars requires the Crown to establish that the conspiracy did commence in April 1999, and not at some later date (August 1999), then proof of the charges thus particularised would require acceptance by the jury of the evidence of Kenneth Lai beyond reasonable doubt. It is clear on the depositions that the only witness whose evidence could establish a conspiracy commencing in April 1999 is Kenneth Lai.
It is well established that the Crown does not need to prove the precise date when the conspiracy commenced. In general, specification of the date in the particulars is not an essential part of the Crown proof but, rather, serves to give notice of when the Crown alleges the conspiracy began, and thus precludes the Crown from adducing evidence of a conspiracy before that date.[27] In Caratti v R the presentment alleged a conspiracy between 1988 and 1994 between Sergio Caratti, the appellant and two other members of the family. Sergio Caratti died in 1992. The Court held that, based on the particular circumstances of that case, the conspiracy could not survive the death of Sergio Caratti. Thus the end date of the conspiracy was in May 1992. Ground 2(a) of the grounds of appeal alleged that the trial judge erred in failing to direct the jury that it could not convict unless satisfied that the conspiracy found to be proved was substantially the conspiracy particularised, being one which existed between 30 June 1988 and 1 April 1994. That ground of appeal was rejected by the West Australian Court of Appeal. Malcolm CJ (with whom Kennedy and Anderson JJ agreed) stated:
“It was contended that the learned trial judge was in error in failing to direct the jury that they could not convict unless the conspiracy was found to exist between 30 June 1988 and 1 April 1994. These dates, of course, were mere particulars. In other words, it would be sufficient if the jury were satisfied beyond reasonable doubt of the making of the conspiratorial agreement at some time between those years, subject to the qualification which I have expressed regarding the impact of the death of Sergio. It was not incumbent upon the Crown to prove the conspiracy existing from 1988 to 1994 and there was no obligation on the learned trial judge to give a direction to that effect … “.[28]
[27]Saffron v R (above) at 283, 292 (Hope JA); 300-301, (Clarke JA); 310 (Hunt AJA); Crimes Act 1958 s.375.
[28]Paragraph [68].
Mr Georgiou submitted that the April 1999 date serves, in the context of this case, a more important function. That date could only be relevant by encompassing the evidence of Kenneth Lai as to the alleged corrupt approach to him by Cox and Sadler.
There is no doubt that the date of April 1999, specified in the charge on the presentment and the particulars, was selected because the Crown intend to allege that the conspiracy commenced shortly before the alleged corrupt approach by Cox and Sadler to Kenneth Lai. However that proposition leaves unanswered the fundamental question which I need to determine, namely, whether the Crown would establish a conspiracy which is substantially different to the conspiracy alleged and particularised, if the jury did not accept the evidence of Kenneth Lai.
If the jury were to reject the evidence of Lai, it would nonetheless be open to the jury to find that the accused had conspired to traffick heroin, based in particular on the evidence of Duy Le. I do not understand either of the accused to have contended to the contrary. Equally, if the jury were to reject the evidence of Lai, the jury could nonetheless, in my view, find a conspiracy proven of the type described in the particulars (as explained by Mr Tovey and as construed by me) as one envisaging the supply of heroin to a person or persons who the accused could trust, such as an informer or informers. In other words the conspiracy thus proven would have the same object as that charged (to traffick heroin in a quantity not less than a commercial amount), the same parties (Ferguson, Cox and Sadler), and the same intended modus operandi (the supply of heroin to or through a person such as an informer).
The omission of Lai would affect the finding by the jury as to how, when and in what circumstances the conspiracy commenced. On the one hand, the Crown case is that the conspiracy had its beginnings with the unsuccessful corrupt approach by Cox and Sadler to Lai; it did not begin, “out of the blue”, with the alleged approach by Cox to Duy Le in August 1999.
In this context Mr Young submitted that if Lai’s evidence were not accepted the Crown case would be substantially different particularly against his client, Mr Cox. Mr Cox resigned from the police force in late 1999. In outlining the intended Crown case to me Mr Tovey, in argument[29] stated:
“As against Mr Cox, it will be submitted that he was most directly involved in the implementation of the conspiracy during 1999 and he had little direct involvement thereafter. As against Mr Sadler, the Crown case, in essence, is that he played a subordinate role to Cox in 1999 and thereafter played a subordinate role to Ferguson. The core of the case against him relates to his behaviour in 2000 and 2001.”
[29]T159.
Of course there would be some difference between a conspiracy alleged to commence with the approach to Lai (in about April 1999) and a conspiracy found to commence with the approach to Duy Le in August 1999. However, as I have observed, the parties, the object and the modus operandi would be the same in both cases. Further, the thrust of the Crown case, as outlined to me by Mr Tovey, would be the same. The core of the Crown case would be that Mr Cox was most directly involved in 1999, with Mr Sadler playing a subordinate role to him. That aspect of the Crown case would not be affected against either Cox or Sadler if Lai’s evidence were not accepted. Nor would the aspect of the Crown’s case that the core of the Crown case against Sadler relates to his behaviour in 2000 and 2001, during which he played a subordinate role to Ferguson. Self-evidently Lai’s evidence would be irrelevant to that aspect of the Crown case.
If the jury were not to accept Lai’s evidence, it would find that any conspiracy did not begin until some time later than April 1999, but no later than August 1999. In that context I do not consider that the period of time during which the jury might find the conspiracy against Cox and Sadler to be substantially different to the time alleged in the charge on the presentment and particularised by the Crown.[30]
[30]See Giretti and anor v R (1986) 24 A Crim R 112 at 130, 141 (per Ormiston J); Caratti v R (above).
If the decision of the New South Wales Court of Appeal in Saffron requires me to examine the question from the perspective of the implementation of the conspiracy, I do not consider that my conclusion would be any different from that which I have set out above. The particulars of overt acts in relation to both accused commence with particulars of the alleged corrupt approach by Cox and Sadler to Lai. The particulars then set out at some length particulars relating to the alleged corrupt dealings between Cox and Sadler and Duy Le. I do not consider that the scope or structure of the particulars of overt acts lead to the conclusion that the implementation of the alleged conspiracy would be substantially different to that set out in the particulars, if the Crown failed to prove the allegations relating to Lai beyond reasonable doubt.
For those reasons, I reject the submission of the accused that, on the charge of conspiracy in the presentment and as currently particularised, the jury could only convict either accused if it is satisfied beyond reasonable doubt of the evidence of Kenneth Lai as to the corrupt approach made to him by the accused in the earlier part of 1999.
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