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:
On 4 January 2006, a Supreme Court jury found Ian Ferguson guilty…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.