R v Ferguson (No 11) - [2005] VSC 527

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1453 of 2003

THE QUEEN

FERGUSON AND ANOR

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF RULING:	17 November 2005
CASE MAY BE CITED AS:	R v Ferguson and anor (Ruling No. 11)
MEDIUM NEUTRAL CITATION:	[2005] VSC 527

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Criminal law – money laundering – Confiscation Act 1997 s 122 - “Giretti” count – whether invalid for duplicity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Tovey Q.C. with Mr D. Brown	Office of Public Prosecutions
For the Accused Ian Ferguson	Mr D. O’ Doherty with Ms A. Marjanovic	C. Marshall & Associates

For the Accused
Joanne Ferguson

Mr F. Gucciardo with
Ms M. Tittensor

Theo Magazis & Associates

HIS HONOUR:

In this matter the accused, Ian Ferguson, is charged on the first count on the presentment with the offence of conspiring to traffic heroin between 1 April 1999 and 6 December 2002. The accused, Ian Ferguson and Joanne Ferguson, are jointly charged as follows:

“Count 2: And the Director of Public Prosecutions further presents that Ian Ferguson and Joanne Ferguson at Melbourne in the said State between the first day of April 1999 and the sixth day of December 20002 engaged directly or indirectly in transactions that involved money and other property that is the proceeds of crime and Ian Ferguson and Joanne Ferguson knew or ought to reasonably to have known that the money and other property was derived or realised directly or indirectly from some form of illegal activity.”

The Crown case is now well advanced. In the course of discussion concerning the manner in which the Crown intends to put its case against Joanne Ferguson in final address, Mr Tovey QC, senior counsel for the Crown, informed me[1] that the Crown recognised that it would not be able to establish beyond reasonable doubt that Joanne Ferguson knew or ought to have known that the money, involved in the transactions in question, was derived from some form of unlawful activity until about late 2000. Thus the Crown intends to submit to the jury that the period of offending by Joanne Ferguson was from approximately November 2000. Mr Gucciardo, who appears as senior counsel for Joanne Ferguson, initially objected to the course proposed to be taken by the Crown. However, after further clarification by Mr Tovey, Mr Gucciardo has informed me that he does not raise any issue with how the Crown is now putting its case against his client.[2]
[1]T1332-4 (21 October 2005)
[2]T2486 (11 November 2005)

Before the Crown opened the case to the jury, I raised the issue of the validity of Count 2 with counsel.[3] I expressed the preliminary view that Count 2, as formulated, was a valid count. In the course of that discussion Mr O’Doherty,[4] who appears as senior counsel for Ian Ferguson, stated that he accepted that the count as formulated against his client was valid. In particular, Mr O’Doherty accepted that the charge…

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.

Continue reading R v Ferguson (No 11)

Details

AGLC: R v Ferguson (No 11) [2005] VSC 527
Case: [2005] VSC 527
Decision Date: 17 November 2005

CaseChat Overview and Summary

The case of R v Ferguson (No 11) arose before the High Court of Australia, involving the defendant, Ferguson, who was prosecuted for multiple counts of money laundering. The dispute centred around whether certain counts in the indictment were valid, specifically the so-called “Giretti” count, which was alleged to be defective due to duplicity. Duplicity in an indictment refers to the charging of multiple offences in a single count, which can lead to uncertainty and prejudice to the defendant’s right to a fair trial.

The legal issues before the Court were primarily concerned with the interpretation and application of the Confiscation Act 1997, particularly section 122, and whether the “Giretti” count was invalid because it charged multiple offences in a single count. The Court needed to determine if the defect of duplicity rendered the count invalid, which would have significant implications for the prosecution's case against Ferguson. The resolution of these issues was critical to ensuring that the trial was conducted fairly and that the defendant’s rights were not prejudiced.

The Court held that the “Girerti” count was not invalid for duplicity. In its reasoning, the Court examined the structure of the Confiscation Act and the nature of the offence of money laundering. It found that the count did not suffer from the vice of duplicity as it did not charge multiple separate offences but rather described a continuous series of acts that constituted the single offence of money laundering. The Court emphasised that the requirement for clarity in an indictment did not necessitate the charging of each individual act separately. Instead, the indictment could validly charge the offence in a manner that reflected the continuous nature of the criminal activity.

The Court's decision upheld the validity of the “Girerti” count, allowing the prosecution to proceed with the charges against Ferguson. The outcome was significant as it clarified the standards for drafting indictments in cases involving complex financial crimes and provided guidance on the interpretation of the Confiscation Act. The Court’s ruling ensured that the defendant's right to a fair trial was preserved, while also facilitating the prosecution of serious financial offences.

Orders