R v Ferguson (No 15)
[2005] VSC 471
•2 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| IAN FERGUSON |
| - and - |
| JOANNE FERGUSON |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November; 1 December 2005 | |
DATE OF RULING: | 2 December 2005 | |
CASE MAY BE CITED AS: | R v Ferguson and anor (Ruling No. 15) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 471 | |
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CRIMINAL LAW – Prosecution witnesses – Accomplice direction – Faure directions – Corroboration.
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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 First Defendant | Mr D. O’Doherty with Ms A. Marjanovic | C. Marshall & Associates |
| For the Second Defendant | Mr F. Gucciardo with Ms M. Tittensor | Theo Magazis & Associates |
HIS HONOUR:
The evidence in the case has concluded. Final addresses are due to commence next Monday, 5 December. I have raised with counsel the question whether I should give any special directions to the jury, in my final charge, concerning the witnesses Duy Le, Loan Tran and Kenneth Lai.
It is common ground between the parties that a special direction should be given in relation to the witness Duy Le. It has also been submitted on behalf of the accused that I should given a special direction in relation to the witnesses Loan Tran and Kenneth Lai, such direction being the type referred to in DPP v Faure.[1] The Crown submits that such warning should not be given to the jury in relation to those two witnesses.
[1][1993] 2 VR 497.
Duy Le – accomplice direction
Initially I raised with counsel whether I should give the jury an accomplice direction in relation to Duy Le, as well as a “Faure” direction. The Crown did not oppose me giving such a direction. However it was submitted on behalf of the accused, Ian Ferguson, that it would be disadvantageous and unnecessary for me to give an accomplice direction, in circumstances where it is proposed that I give a direction pursuant to DPP v Faure.
On reflection I accept the submissions made on behalf of Ian Ferguson. I agree with Ms Marjanovic, who appears as junior counsel for Ian Ferguson, that an accomplice direction would not only fail to properly capture the inherent dangers contained in Duy Le’s evidence, but would also be disadvantageous to the accused. It is debateable whether in fact Duy Le is an accomplice for the purposes of such a warning; compare R v Thomas.[2] Further and in any event such a direction would be premised on acceptance by the jury of the existence of the conspiracy contended for by the Crown. In the context of the issues that arise in this case, I agree that the giving of such a warning would be patently disadvantageous to the accused. In those circumstances it is both unnecessary and undesirable that I give such a direction to the jury. See R v Gallagher.[3]
Faure directions
[2](1988) 40 ACR 89 at 92.
[3][1986] VR 219 at 238.
The only remaining issue in relation to Duy Le’s evidence is the particular content of the direction which I should give pursuant to DPP v Faure. However, as I stated, the parties have made competing submissions as to whether or not I should give such a direction in relation to Loan Tran and Kenneth Lai.
In DPP v Faure, the Court of Criminal Appeal held that, although the applicant’s wife, who gave evidence for the Crown, was not to be characterised as an accomplice, nonetheless she was a witness in respect of whom a warning should have been given similar to that which is given in respect of accomplices. That conclusion was based primarily on the circumstance that the case was conducted on the basis that it was either the applicant or his wife who killed the deceased. Furthermore there was cogent evidence that the applicant and his wife had had a stormy relationship, such that his wife had attempted to get rid of him, and even have him killed. In those circumstances the Court held that the applicant’s wife “… was in that general class of witnesses about whom a warning should be given to avoid a risk of miscarriage of justice.”[4]
[4]At p.503, per Hampel J.
The decision of the Court of Criminal Appeal in Faure has been considered and followed in a number of subsequent decisions. Those cases make it clear, in my view, that the circumstance that a witness has a motive to lie, or to falsely implicate the accused, is not of itself necessarily sufficient to require or justify the giving of such a direction. Rather the critical question is whether the witness is one who is potentially or inherently unreliable in such a way that may not be fully appreciated or understood by the jury, without an appropriate direction by the judge, such direction bearing the authority of the office of the judge.
Thus, in R v Weiss,[5] Callaway JA observed:
“Mr Tehan submitted that a Faure direction should have been given instead of the accomplice warning. That submission invited attention to R v Latina[6] in which Southwell AJA explained, with the concurrence of Phillips CJ and Brooking JA, that, properly analysed, Faure’s case stands as authority for no new principle. The duty to warn in the manner contemplated by that case arises only where the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge. Only then does it become necessary to give a warning which emanates from the judge with the weight of judicial office.”
[5](2004) 8 VR 388 at 395 [55].
[6]Unreported, Court of Appeal, 2 April 1996.
His Honour then proceeded to list the matters relied on by counsel for the applicant in support of the contention that a Faure direction should have been given at trial. Having done so, Callaway JA stated:
“In my opinion all those factors were well within the capacity of the jury to evaluate for themselves. There was no need for a direction with the authority of the judge’s office. Generally speaking, such warnings should not be given unless they are required. Given unnecessarily, they tend to blur the division of responsibility between the judge as the arbiter of the law and the jury as the tribunal of fact.”[7]
[7]At p.396 [57].
In R v Latina,[8] Southwell AJA quoted with approval the following passage from the unreported decision of the Court of Criminal Appeal in R v Campbell,[9] where that Court stated:
“Whether such a warning should be given, and if so, what will amount to an adequate warning must depend on the circumstances of each case. It does not follow that in every case in which there is an attack on the credibility of a witness or a group of witnesses the judge is under a duty to give a warning which emanates from the judge and bears the weight of judicial authority. This is so even if the impugned witnesses have convictions or bear some characteristics which may, on one view of the evidence, render them unreliable. The duty to warn in the manner contemplated by Faure’s case arises in cases in which the factors which make the evidence potentially unreliable are so strong that it becomes unsafe to assume that the jury will rely on the arguments of counsel, even if those arguments are repeated and emphasised by the judge. It then becomes necessary to give a warning which emanates from the judge with the weight of judicial office. Cases where a warning of this kind is necessary will often be ones in which the factors which make witnesses unreliable exist independently of what view the jury takes of the witness’s evidence. Faure was such a case.”
[8]BC 9601368 at p.10.
[9]Unreported, Court of Criminal Appeal, 14 November 1994.
Similarly, in R v Miletic the Court of Appeal stated:[10]
“In our opinion a distinction should also be drawn, in cases such as the present, between circumstances that it is well within the ability of the jury to assess for themselves and factors the full significance of which may be more apparent to the judge: compare Bromley v R[11] and Carr v R.[12] Appellate intervention is much more likely to be warranted in the latter case than in the former. Where a concatenation of circumstances is within the capacity of a jury to evaluate, in the light of their own experience and with the benefit of counsels’ addresses, it is only in exceptional cases that a warning is required. More often it is simply a matter for the judge to decide whether or not it is appropriate to make a comment for the assistance of the jury. … We return therefore to the general principle that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice.”[13]
Duy Le – Faure direction
[10][1997] 1 VR 593 at 606.
[11](1986) 161 CLR 315 at 324-5.
[12](1998) 165 CLR 314 at 330.
[13]See also R v Brookes (1999) 103 ACR 234 at 244-5 (per Batt JA); R v Kotzmann [1999] 2 VR 123 at 145-6 [74-77] (per Batt JA).
As I stated it is common ground between the prosecution and the accused that a “Faure” direction should be given in relation to Duy Le. Ms Marjanovic drew my attention to a number of features relating to Duy Le which, she contended, should underlie the type of direction which I give to the jury. In essence, those factors could be summarised as falling into two categories. First, I consider it necessary to give the jury a direction concerning Duy Le’s role as an informer to the Ceja Task Force, and the giving of evidence by him in that capacity. When Duy Le was interviewed by the Ceja Task Force in December 2002 he was already an absconder. There were outstanding warrants for his arrest on serious matters. On his own evidence, he had been involved in significant drug trafficking during the previous three years. Clearly he had a motive, first, to shift the blame for his criminality onto someone else, and, secondly, to assist the authorities by giving them information which, he might have perceived, they would wish to receive from him, in order to gain a benefit for himself. While those motives might be well understood by the jury, in my view they are of such a nature and of such weight that they ought to be brought to the attention of the jury, and made the subject of an appropriate direction, by me in my capacity as a trial judge.
The second group of factors relating to Duy Le and which, in my view, warrant the giving of a direction, consist of matters relating to Duy Le’s background. Hitherto Duy Le had a serious criminal background. He had on more than one occasion been involved as an informer to the police. There is evidence as to the treacherous nature of police informers. Duy Le had, on his own evidence, shown himself to be such a treacherous person. He had previously lied to the police. On his own admission he had previously been motivated by a sense of vengeance, on one occasion in having a violent burglary effected on the house of a friend, and, on another occasion, in wrongly implicating someone in a criminal offence. He was a person who has admitted to being involved in criminal dishonesty. All of those matters are, of course, evidence before the jury. However, in a case such as this, I consider that it is important that I, as a trial judge, point to the collective effect of those factors as a basis for requiring the jury to exercise particular care when scrutinising the evidence of Duy Le.
While it was common ground that a Faure direction should be given to the jury concerning Duy Le, there was initially disagreement between the parties as to the nature of the corroborative evidence which should be the subject of that direction. On behalf of the accused Ian Ferguson, Ms Marjanovic submitted that I should direct the jury that it would be dangerous for them to convict the accused on the uncorroborated evidence of Duy Le, and that in this context corroboration consists of evidence confirming the substance of the allegations made by Duy Le. Ms Marjanovic referred to the passage from the judgment of Deane J in Pollitt v R.[14] That case involved evidence given by one Denning of an alleged confession made to him by the accused while they were in custody. Deane J stated:
“Where a prison informer supplies information after encouragement by the authorities, the likelihood is that there will have already existed some evidentiary material which was known to the authorities and which connected the accused with the alleged offence. Thus, in the present case, both Denning’s evidence and Pollitt’s unsworn statement indicate that Denning knew that the police had other incriminating evidence against Pollitt at the time when Denning first provided information to the police. … If a corroboration warning is to be of real use in such a context, it must be in terms which direct the need for corroboration towards the reliability of the particular evidence, that is to say, material which corroborates the actual making of the oral confession. An example of that type of corroboration is evidence establishing both that disputed material in the alleged oral confession or statement is accurate and that that material would not have been known to the accused if the alleged confession or statement had not been made.”[15]
[14](1992) 174 CLR 558 at 587 et seq.
[15]See also R v Tamme [2004] VSCA 165 at [26]-[29] (per Nettle JA).
There is no authority which applies the principles, thus expressed by Deane J, to the case of a witness such as Duy Le. Indeed, I heard debate on this topic on two days during the trial, 17 November 2005 and 1 December 2005. On the latter date, when submissions were made in relation to what evidence was capable of corroborating the evidence of Duy Le, Mr O’Doherty, senior counsel for Ian Ferguson, did not press the proposition originally argued by Ms Marjanovic. In my view he was correct not to do so. In Pollitt’s case, Deane J was concerned with particular evidence given by the police informer, namely, an alleged confession made to the informer Denning by the accused. In those circumstances a corroboration warning would only have effect if the corroborative evidence were directed to the making of the confession and the subject matter of the alleged confession. Self-evidently those principles do not apply to a witness such as Duy Le.
Loan Tran
The second witness in respect of whom it was submitted that I should give a Faure direction is the witness Loan Tran. The main gist of her evidence is to support the testimony of Duy Le that, on a number of occasions, he met with Ferguson and Sadler at various locations, at which they sold him heroin. It was submitted that I should give a Faure direction in relation to Loan Tran because of her relationship with Duy Le, particularly during the period after he had absconded, and because of her perception that she may have been legally implicated in the criminal acts of Duy Le during that period of time. Reliance was also placed on the evidence of Loan Tran that, when she was spoken to by the police in December 2002, she was informed by an inspector that she could be in trouble.
On the other hand Mr Tovey QC has submitted that the matters put forward on behalf of Ian Ferguson as requiring a Faure direction are matters well within the understanding of a jury. He submitted that it was not necessary, nor desirable, for a trial judge to give a judicial direction as to how the jury, as the judges of fact, should assess that evidence.
The question whether I should give a special direction in relation to the evidence of Loan Tran is not easy to resolve. There is substantial force in Mr Tovey’s submission that the matters relied on by Ms Marjanovic are all matters which can be clearly understood by the jury, and taken into account by the jury, without the need for a judicial direction to them. As Callaway JA observed in Weiss,[16] it is important that I, as the trial judge, refrain from giving unnecessary directions, lest I thereby intrude on the exclusive domain of the jury as the sole arbiters of fact.
[16]Above.
Nonetheless, I have reached the conclusion that there are a number of factors concerning Loan Tran which warrant the need for the jury to exercise special caution when they assess her evidence. Loan Tran occupies a position of some significance in the case, as she is the only eyewitness to the alleged corrupt dealings between Duy Le and members of the Drug Squad, including Ferguson. On any view of her evidence, Loan Tran was living with and associated with Duy Le when, on Duy Le’s own admission, Duy Le was an active trafficker of drugs. When Duy Le was arrested in April 1999, Loan Tran attempted to help him obtain bail by contacting a cousin of Duy Le and asking that cousin to locate a quantity of heroin which Duy Le had secreted, and to sell the heroin to raise the amount required for bail. After mid 2000 Loan Tran continued to associate with Duy Le notwithstanding that she knew he was an absconder on the charges then outstanding against him. In his evidence Duy Le stated that Loan Tran knew that he was involved in drugs, and that she knew the full extent of his drug trafficking. On the other hand Loan Tran, in her evidence, has stated that she understood that Duy Le was earning his money from legitimate business activities. On her own evidence Loan Tran was present when, if her evidence is to be accepted, she witnessed Duy Le acquiring drugs from members of the Drug Squad.
Thus, when Duy Le was arrested in Sydney in December 2000, Loan Tran was in a position in which she may well have considered herself to be compromised by her prior association with Duy Le. Loan Tran was interviewed by Ceja Task Force investigators on 10 December 2002. At that time Inspector Hardy of the Task Force informed Loan Tran that she could be in trouble, and in cross‑examination she acknowledged that at that time she thought she could be in a lot of trouble. Accordingly, when she then proceeded to undergo a tape recorded interview with the investigators, she was in a position where she had serious reason to be concerned about her own position due to her previous association with Duy Le. In those circumstances she was a person who had a motive, or potential motive, to protect her own position by giving false or misleading evidence and if necessary by implicating others in order to protect herself.
As I have stated, there is merit in Mr Tovey’s submissions that the matters to which I have just adverted are matters which can be readily understood by a jury without the need for judicial direction. However, on balance, and with some hesitation, I have come to the view that I ought to give a direction in relation to the evidence of Loan Tran based on the factors to which I have just referred. In the context of the issues at large in this trial the matters to which I have referred mean that a jury ought not to treat Loan Tran as simply another witness whose credit was under attack. Rather, the jury should take particular care in assessing the evidence of Loan Tran. I cannot be satisfied that, in the absence of a specific judicial direction, the jury would exercise the type of care which, in my view, is requisite in the circumstances of this case. For those reasons I intend to direct the jury that there is a particular danger in relation to the evidence of Loan Tran, which necessitates them to first consider whether the evidence of Loan Tran is corroborated by other independent evidence.
Kenneth Lai
Ms Marjanovic submitted that I should also give a Faure direction to the jury in relation to the evidence of Kenneth Lai. He was arrested by the Drug Squad in early 1999. In essence his evidence is that Cox and Sadler endeavoured to persuade him to traffick drugs supplied to him by them in return for a share of the profits of that trafficking. Lai rejected that proposal. The Crown case is that the overture to Lai was the precursor to the successful recruitment by the three alleged conspirators of Duy Le as the person to whom they would traffick drugs.
Ms Marjanovic submitted that a Faure direction should be given in relation to Lai because he is what she described as a “criminal informer”. However, Lai is not an “informer” in the same category as Duy Le. The latter supplied information to the Ceja Task Force, and gave evidence, pursuant to, initially, an inducement, and, subsequently, an indemnity, in respect of the wrongdoing which he disclosed in the course of his evidence. It is true that Lai was an informer to the Drug Squad who assisted to set up the arrest of Duy Le. However he is not, in the same sense as Duy Le, an “informer” to Ceja Task Force. He has not received an indemnity and there is no evidence that he provided information to the Ceja Task Force pursuant to any “inducement” of the type given to Duy Le.
Certainly there are a number of matters in respect of which Kenneth Lai’s credit is open to question. He has a background of using and trafficking drugs. He has previous convictions. He does have a background as an informer to the Drug Squad in the manner I have described. However, all of those matters are simply relevant to Lai’s credit. They are matters which can be adequately put to the jury by counsel in submission. I have no apprehension that a jury would not be able to fully understand and appreciate the relevance of those matters. I do not consider that it would be appropriate to instruct a jury that they should consider it dangerous to act on the uncorroborated evidence of Kenneth Lai. Such a direction would not be warranted nor necessary according to the principles which I refer to above. Accordingly I shall not give such a direction in relation to Lai.
Corroboration
The next question is whether there is evidence capable of corroborating the testimony of Duy Le and Loan Tran. In the course of submissions Mr Tovey proffered a document setting out the items of evidence which he submitted were capable of corroborating both witnesses. Mr O’Doherty, who argued this aspect of the matter on behalf of Ian Ferguson, accepted that some of the matters relied upon by Mr Tovey are capable of constituting corroboration. However, he did argue that some of the matters referred to by Mr Tovey are not capable of constituting corroboration of the evidence of those two witnesses.
Principles of Corroboration
The principles relating to corroboration are well established. The classic definition of corroboration is contained in the judgment of the Court of Criminal Appeal in R v Baskerville[17] where the Court stated:
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”[18]
[17][1916] 2 KB 658 at 667.
[18]See also Doney v R (1990) 171 CLR 207 at 211; R v Rayner [1984] 4 VR 818 at 838 (per Winneke P), 851 (per Brooking JA).
The following principles apply:
1.The essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable.[19]
2.Corroborative evidence may be circumstantial or direct.[20]
3.Corroborative evidence need not be evidence which “replicates” the evidence to be corroborated.[21]
4.The evidence does not cease to be capable of being corroborative by reason only of the fact that it is not independent evidence which is unequivocally referable to the commission of a crime by the accused.[22] In Doney v R[23] the Court stated:
“It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice … “.
[19]Doney v R (above) at 211; R v Kilbourne (1973) AC 729 at 758.
[20]R v Taylor [2004] 8 VR 213 at [12]; Doney v R (above) at 211.
[21]R v Taylor (above) at [12] (per Winneke P).
[22]R v Taylor at [12].
[23](above at 211).
The question for me is not whether I consider that the evidence, pointed to by Mr Tovey, does corroborate the evidence of Duy Le and Loan Tran. Rather, the question is whether, as a matter of law, the evidence referred to by Mr Tovey is capable of corroborating the testimony of Duy Le and Loan Tran. It is for the jury, and not me as trial judge, to determine whether the particular evidence is to be accepted, and if so, whether it does in fact corroborate Duy Le and Loan Tran.[24]
[24]R v Kendrick [1997] 2 VR 699 at 705 (per Winneke P).
Can Loan Tran corroborate Duy Le?
Ms Marjanovic submitted that the evidence of Loan Tran was not capable of being evidence which corroborated Duy Le. She referred to and relied on the following passage from the joint judgment of Dawson and Gaudron JJ in Pollitt v R:[25]
“The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration.”
[25](1992) 174 CLR 558 at 600.
Duy Le was arrested in Sydney on 6 December 2002. After his initial interview in Sydney, he was then transferred to Melbourne on 10 December 2002. He was brought before the Melbourne Magistrates’ Court, and granted bail. After his release on bail, he was permitted to speak to Loan Tran in an interview room in the offices of the Ceja Task Force. At this stage Loan Tran had given one interview to the Ceja Task Force, but that interview was related solely to the issue of whether Duy Le had sold a BMW vehicle to Ferguson. On 10 December she spoke to Duy Le alone in the interview room. The evidence is that the conversation between the two lasted for 30 minutes. An attempt was made to record the conversation covertly. However, the recording equipment failed. Inspector De Santo listened in to the conversation. His evidence was that he could recall Duy Le telling Loan Tran to tell the investigators the truth and that the Ceja Task Force investigators could be trusted. The evidence of Loan Tran was that in the course of that meeting Duy Le did not tell her what to say, but just told her to tell the truth. Loan Tran was then interviewed by Ceja Task Force on 10 December. That interview formed the basis of a statement later signed by her. Subsequent to the meeting, but before the making of the statement, she had a meeting with Duy Le in the park in which Duy Le asked her to join him in the witness protection scheme.
It was submitted on behalf of Ferguson that in those circumstances there was a possibility of joint fabrication of the evidence between Duy Le and Loan Tran. On the other hand, Mr Tovey submitted that the evidence did not support that proposition. Mr Tovey submitted that the evidence was that, on 10 December, Loan Tran underwent a very detailed interview. That interview was ultimately reflected in a statement. There has been no suggestion that Loan Tran gave evidence which was not set out in her interview and then her statement. Thus the detail given by Loan Tran in her evidence reflects what she told the Ceja Task Force on 10 December. Mr Tovey submitted that that detail could not have been the product of joint concoction between Duy Le and Loan Tran in the half an hour in which they spoke together in the interview room. Accordingly, he submitted that on the facts there has not been shown to be a possibility of a joint fabrication of the type referred to by Deane J in Pollitt.
The question is whether, in the circumstances, there was a “possibility” that Duy Le and Loan Tran “conspired to give an identical but false account”, to adopt the words of Deane J in Pollitt’s case. The false account, which might be the product of any such potential conspiracy, would be the evidence of the witness providing corroboration, that is, Loan Tran. That question must be assessed realistically, by comparing, on the one hand, the opportunity for any confabulation between the two witnesses with, on the other hand, the nature and extent of the evidence given by Loan Tran.
Loan Tran’s account did contain some detail. However, by and large, it was quite general in describing the locations and circumstances of meetings between Duy Le and Drug Squad members, in which it is alleged that drugs were supplied to Duy Le. The evidence was given in relatively short compass. Loan Tran’s evidence‑in‑chief lasted some 35 minutes, and occupied 13 pages of the transcript.
Having had the opportunity to review that evidence, I substantially doubt that Loan Tran and Duy Le had a realistic opportunity to collude to produce the evidence which Loan Tran has given in this trial. However, I am unable to conclude that the possibility of any such confabulation is non‑existent or too remote to disregard. In those circumstances, and bearing in mind the role played by Loan Tran in the Crown case, I do not consider it appropriate to direct the jury that evidence given by Loan Tran is capable of corroborating the evidence of Duy Le, for the purposes of the assessment by the jury of Duy Le’s evidence pursuant to the Faure direction which I shall give.
In light of that conclusion, it follows that, in giving a Faure direction to the jury concerning Loan Tran, I need also to warn the jury about the possibility that her evidence may be the product of such collaboration between her and Duy Le. I shall, of course, emphasise that it is a matter for the jury to determine whether there was any realistic opportunity for the two to collude in relation to their evidence, and whether indeed any such collusion occurred.
Duy Le – Corroboration
Mr Tovey put before me a document which he submitted set out the matters capable of constituting corroboration of the evidence of Duy Le and Loan Tran. The document contained 14 numbers items. In addition he added two in the course of argument. He submitted that all of those 16 items were capable of corroborating the evidence of Duy Le. He submitted that some of them were capable of corroborating evidence of Loan Tran. I shall deal with those items seriatim according to the numbering given to them by Mr Tovey. I shall first do so on the context of evidence capable of corroborating the evidence of Duy Le.
Items 1, 2 and 3. I agree that these items are all capable of corroborating the evidence of Duy Le as to the existence of a corrupt relationship between him and Ferguson. They relate to the evidence, principally given by Curtin, as to financial betterment of Ferguson. In submissions, Mr O’Doherty did not contend that those matters are not capable of corroborating the evidence of Duy Le.
Item 4 “structured payments”. Mr Tovey did not put to Ferguson in cross‑examination that deposits made by him into the bank accounts of the Fergusons were structured to avoid the provisions of the cash transactions reporting legislation. Accordingly he is not in a position to rely upon this aspect in final address.
Item 5 alleges attempts by Ferguson to conceal his association with Bambra and the Barrett bank accounts. Mr O’Doherty correctly accepted that, provided the jury accepted as a matter of fact that such attempts were made, then those attempts were capable of constituting evidence corroborative of Duy Le’s evidence of the corrupt relationship with Ferguson.
Item 6 “phone calls after warrant”. Duy Le gave evidence that he had telephone conversations with Ferguson, Sadler and Cox after the issue of the warrant for his arrest in May 2000. That evidence is of significant importance to the Crown, if accepted by the jury. The following evidence is capable of corroborating that aspect of Duy Le’s evidence:
(a)the call charge records;
(b)evidence which is capable of connecting Duy Le with the telephone numbers referred to in the call charge records;
(c)evidence which is capable of connecting Ferguson, Cox and Sadler with the relevant telephone numbers in the same records.
Again Mr O’Doherty correctly accepted that the above evidence is evidence which is capable of constituting corroboration of Duy Le’s evidence. It is a matter for the jury whether they accept the evidence, and, if so, whether the jury accepts that that evidence does corroborate the evidence of Duy Le.
Item 7. Meetings after issue of warrant. I have ruled that the evidence of Loan Tran is not capable of constituting corroboration of the evidence of Duy Le that he met with Ferguson and Sadler (and on one occasion with Cox) after the issue of the warrant.
Item 8. Purchases of alcohol before and after warrant. The purchase of the alcohol by Ferguson from Duy Le before the warrant is capable being part of the material which corroborates Duy Le’s allegation of a corrupt relationship, to the extent that it points to a relationship which went beyond that of informer and police officer. That proposition was correctly accepted by Mr O’Doherty. Further he correctly accepted that there is evidence which, if accepted by the jury, is capable of establishing the supply of alcohol by or through Duy Le to Ferguson after the issue of the warrant for his arrest. That evidence includes: the evidence of Panca Nugraha; the evidence of Mr Blakeley; and the evidence of the telephone calls between Nugraha’s telephone and Ferguson’s telephone in the period from 12 July to 14 July 2000.
Item 9. Transfer of BMW. Mr O’Doherty correctly accepted that there was evidence capable of corroborating the evidence of Duy Le that it was he who sold the BMW vehicle to Ferguson in November 2000. That evidence includes: the evidence of Mr Frangoudes; the evidence of Mr Martinac; the evidence of Mr Hudson; and the evidence of Mr Longmire; and the evidence of telephone calls between the phone associated with Duy Le and the telephone associated with Mr Frangoudes.
Item 10. This item refers to particular occasions on which Duy Le alleges transactions occurred between himself and Ferguson (or one occasion McCabe). Mr O’Doherty submitted that there was only one occasion (3 January 2001) in respect of which there is evidence corroborating the testimony of Duy Le. Without traversing each of the nine occasions referred to in Item 10, I accept that there is evidence capable of corroborating the evidence of Duy Le in respect of each of the transactions, with one qualification. The first “transaction” (the roadworthy certificate for the tray truck) properly belongs under Item 12, and not under Item 10.
Item 11. Mr Tovey and Mr O’Doherty were ad idem that there was evidence capable of corroborating the evidence of Duy Le that on 9 November 2002 Duy Le sent a text message to Sadler “right said Fred”.
Item 12. This item refers to a number of facts relating to Ferguson of which Duy Le was aware. The proof of those facts, independent of Duy Le, is, in my view, capable of corroborating the evidence of Duy Le. The fact that Duy Le was aware of those facts, many of which were personal to Ferguson, is capable of corroborating the evidence of Duy Le that the relationship which he had with Ferguson was significantly different to that of a relationship between a police investigator and an informer. Further, a number of the facts, of which Duy Le had knowledge, were facts which he could have only ascertained after May 2000. The independent evidence as to the existence of those facts after May 2000 is, in my view, incapable of independently corroborating Duy Le’s evidence that he had communication with Ferguson after the warrants had been issued for his arrest.
Item 13 is the evidence of Loan Tran. I have ruled that Loan Tran’s evidence is not capable of independently corroborating the evidence of Duy Le.
Item 14. This item is already dealt with under Item 8.
Item 15 consists of contacts of the alleged conspirators with Duy Le at or about the time that LEAP checks were conducted by the alleged conspirators on Duy Le. That evidence is summarised in Exhibit P362. That evidence is capable of corroborating the evidence of Duy Le that from May 2000 Ferguson, Sadler and Cox provided him with advice as to how he could avoid arrest in respect of the outstanding warrants for his apprehension.
Item 16 is the failure of Ferguson to advise Constable Blakeley that he had seen Duy Le in Heidelberg on 14 November 2000 or that he had obtained an address for Duy Le at 73 Power Avenue. Both of these items of evidence are capable of corroborating the evidence of Duy Le in respect of the same matter, namely, that after May 2000 the alleged conspirators gave him advice and assistance in order to avoid arrest in respect of the outstanding warrants.
Loan Tran – Corroboration
Without again rehearsing each item in detail, I likewise accept that the following items listed by Mr Tovey in his document constitute evidence capable of corroborating the evidence of Loan Tran: Items 1 to 3, 5, 6, 8, 9, and Item 10 (in relation to 11 November 2000, 23 and 24 February 2001, and 9 April 2002).
Items 1 to 3 and 5 are capable of corroborating Loan Tran’s evidence that there was a corrupt relationship between Ferguson and Duy Le. Item 6 supports her evidence that there was ongoing contact between Ferguson and Duy Le after the issue of the warrant, although Loan Tran’s evidence on this point is not unequivocal. Item 8 also supports the evidence of Loan Tran as to a corrupt relationship between Ferguson and Duy Le. The evidence (which I have referred to above), independent of Duy Le, as to the purchase of alcohol by Ferguson from Duy Le after the issue of the warrants supports the evidence of Loan Tran as to an ongoing relationship between the two men after mid 2000. The evidence, independent of Duy Le, which supports the sale by Duy Le of the BMW to Ferguson in November 2000 is capable of corroborating Loan Tran’s evidence about the sale of the BMW to Ferguson. The independent evidence as to the meetings on 11 November 2000, 23 and 24 February 2001 and 9 April 2002 similarly are capable of corroborating Loan Tran’s evidence as to meetings which could be attributed to those days between Duy Le and Ferguson.
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