R v Ferguson (No 15) - [2005] VSC 471

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1453 of 2003

THE QUEEN

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

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 15)

Details

AGLC: R v Ferguson (No 15) [2005] VSC 471
Case: [2005] VSC 471
Decision Date: 2 December 2005

CaseChat Overview and Summary

The defendant, Ferguson, was charged with offences under the Crimes Act 1914 (Cth). The case before the court involved an appeal against conviction and sentence. The prosecution relied on the testimony of several witnesses, including accomplices. The trial judge directed the jury on the need to approach the evidence of accomplices with caution, and also gave directions under Faure v The Queen, a landmark case concerning the reliability of accomplice testimony. The appeal focused on whether the trial judge had adequately cautioned the jury about the risks of convicting on uncorroborated accomplice evidence.

The primary legal issues were whether the trial judge correctly applied the law in giving the accomplice direction, and whether the evidence was sufficiently corroborated to support a conviction. The court had to consider the adequacy of the accomplice direction in the context of the Faure principles, and assess whether there was independent evidence that corroborated the accomplice testimony to the requisite degree. The appellant argued that the trial judge did not sufficiently emphasise the need for caution when considering the accomplice evidence, and that the evidence was not adequately corroborated.

The court held that the trial judge had adequately given the accomplice direction, aligning with the principles established in Faure. The judge clearly cautioned the jury about the dangers of convicting on uncorroborated accomplice evidence and highlighted the necessity of independent corroboration. The court found that the corroboration requirements were met, as there was sufficient independent evidence that supported the accomplice testimony. The appeal against conviction and sentence was dismissed, as the jury was properly directed and the evidence was sufficiently corroborated.

Orders