R v Ferguson

Case [2009] VSCA 198


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 129 of 2006

THE QUEEN
V
IAN FERGUSON
And

No 392 of 2006

THE QUEEN

v

GLENN SADLER

and

No 394 of 2006

THE QUEEN

v

STEPHEN COX

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JUDGES: MAXWELL P, BUCHANAN and WEINBERG JJA
WHERE HELD: MELBOURNE
DATE OF HEARING (IAN FERGUSON): 1 and 2 September 2008;  18 May 2009
DATE OF HEARING (GLENN SADLER AND STEPHEN COX):

1 and 2 September 2008

DATE OF JUDGMENT: 8 September 2009
MEDIUM NEUTRAL CITATION: [2009] VSCA 198
JUDGMENT APPEALED FROM: R v Cox and Sadler [2006] VSC 443 (Kaye J)
R v Ferguson [2006] VSC 163 (Kaye J)
DPP v Ferguson [2006] VSC 484 (Kaye J)

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CRIMINAL LAW – Appeal – Conviction – Conspiracy to traffick heroin in not less than a commercial quantity – Whether evidence could be relied on to show consciousness of guilt – Adequacy of directions on conspiracy – Adequacy of directions on intention to traffick – Whether Browne v Dunn direction necessary – Whether separate trials necessary – Lengthy jury deliberation – Whether judge should have discharged jury – Whether verdicts unsafe and unsatisfactory – Whether material non-disclosure by Crown – Applications refused.

EVIDENCE – Expert – Opinion evidence – Financial betterment – Analysis of unexplained cash transactions and growth in assets – Whether admissible as expert evidence – Whether prejudicial effect outweighed probative value – R v Strawhorn [2008] VSCA 101 distinguished.

EVIDENCE – Corroboration – Whether evidence must tend to prove guilt of accused in order to be corroborative – Whether judge erred in directions as to which evidence could be treated as corroborative.

CRIMINAL LAW – Appeal – Sentence – Whether judge impermissibly brought to bear own assessment of harmfulness of heroin – Application refused.

CONFISCATION – Appeal – Pecuniary penalty order – Whether judge erred in calculating value of benefits derived in relation to offending – Confiscation Act 1997 (Vic) s 67(1)(c) – Appeal dismissed.

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APPEARANCES: Counsel Solicitors
For the Crown

Mr J D McArdle QC with
Dr S B McNicol

Solicitor for Public Prosecutions
For the Applicant Ian Ferguson

Mr D A Dann

C Marshall & Associates
For the Applicant Glenn Sadler

Mr L C Carter

Victoria Legal Aid
For the Applicant Stephen Cox Mr B M Young with
Mr C B Boyce
Tony Hargreaves & Partners Lawyers

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TABLE OF CONTENTS

APPLICATIONS FOR LEAVE TO APPEAL AGAINST CONVICTIONS

I          betterment evidence from forensic accountant

II         Corroboration grounds

III       Admissibility of KENNETH Lai’s EVIDENCE

IV       refusal to discharge the  jury (cox)

V        THE Browne v Dunn  DIREcTION (FERGUSON)

VI       Ferguson’s  Discrepancy Complaint

VII      Admissibility of statements by Cox and Sadler

VIII     Revelation of the Ferguson trial

IX       Separate trials

X        Consciousness of guilt

XI       DIRECTIONS

XII      DUTY OF DISCLOSURE (FERGUSON)

XIII     AGGREGATE OF ERRORS

IV       UNSAFE AND UNSATISFACTORY

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (FERGUSON)

APPEAL AGAINST PECUNIARY PENALTY ORDER (FERGUSON)

Maxwell P
buchanan ja
weinberg ja:

  1. On 4 January 2006, a Supreme Court jury found Ian Ferguson guilty…

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Details
AGLC
R v Ferguson [2009] VSCA 198
Case
[2009] VSCA 198
Decision Date

CaseChat Overview and Summary

In the case of R v Ferguson, the appellant was convicted for conspiracy to traffick heroin in a commercial quantity and was subsequently sentenced. The appellant appealed the conviction, sentence, and a pecuniary penalty order under the Confiscation Act 1997 (Vic). The issues before the court included whether evidence of financial betterment and unexplained cash transactions could be admitted as expert evidence, whether the judge's directions to the jury on conspiracy, intention to traffic, and corroboration were adequate, and whether the judge should have discharged the jury due to lengthy deliberations. The Crown argued that the judge should have given a Browne v Dunn direction, and that separate trials were necessary. The court was also asked to determine whether there was material non-disclosure by the Crown and whether the verdicts were unsafe and unsatisfactory.

The court examined the admissibility of expert evidence regarding financial betterment and unexplained cash transactions, distinguishing it from the case of R v Strawhorn [2008] VSCA 101. The court held that the evidence was admissible as it was relevant to the appellant's intention to traffic and consciousness of guilt. The court also found that the judge's directions to the jury on conspiracy, intention to traffic, and corroboration were adequate, and that no Browne v Dunn direction was necessary. The court held that separate trials were not required in this case. The lengthy jury deliberations did not necessitate the discharge of the jury, and the verdicts were found to be safe and satisfactory. The court also found no material non-disclosure by the Crown.

The court further considered the sentence imposed by the trial judge, holding that the judge did not impermissibly bring their own assessment of the harmfulness of heroin to bear on the sentence. Lastly, the court examined the pecuniary penalty order under the Confiscation Act 1997 (Vic) s 67(1)(c) and found no error in the judge's calculation of the value of benefits derived in relation to the offending. The appeal against the conviction, sentence, and pecuniary penalty order was dismissed.

No orders were made in relation to the appeal against conviction, sentence, or pecuniary penalty order. The appellant's conviction and sentence stood as imposed by the trial judge, and the pecuniary penalty order remained in place.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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