R v Ferguson (No 9)
[2005] VSC 447
•15 November 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1453 of 2003
| THE QUEEN |
| v |
| FERGUSON AND ANOR |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 15 November 2005 | |
CASE MAY BE CITED AS: | R v Ferguson and anor (Ruling No. 9) | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 447 | |
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CRIMINAL LAW – Application to discharge jury without verdict – Media publications pertaining to issues in case – No high degree of need – Application rejected.
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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’Dohety with Ms A. Marjanovic | C. Marshall & Associates |
| For the Accused Joanne Ferguson | Mr F. Gucciardo with Ms M. Tittensor | Theo Magazis & Associates |
HIS HONOUR:
Application has been made on behalf of each of the accused that the jury be discharged without verdict. Those applications arise out of the publication in the media last Saturday, 12 November, of matters pertaining to investigations undertaken by the Office of Police Integrity (to which I shall hereinafter refer as the “OPI”). I have also had drawn to my attention an interview of Mr Kerry Milte on the ABC Stateline program, broadcast on 4 November 2005.
The following publications have been put before me and have been marked as exhibits and they are the basis of the applications which have been made to me.
First, the transcript of ABC Stateline interview with Kerry Milte, dated 4 November 2005; second, articles on pp.1 and 4 of The Age newspaper dated 12 November 2005, the article on p.1 being headed “Corrupt Police Protect Organised Crime Bosses”, the article on p.4 being headed “Crooked Cops in Dread of Secret Sleuths; three, articles on pp.3, 23 and 24 of the Herald Sun, dated 12 November 2005, p.3 being headed “Heat on Bent Police”, p.23 headed “The Untouchables”, and p.24 headed “Keeping the Cops Honest”; fourth, on‑line transcript of Channel 10 news for 12 November 2005; fifth, on‑line transcript of The Age of 12 November 2005 under the heading “Corrupt Police Protect Organised Crime Bosses”; six, on‑line transcripts of the Herald Sun of 12 November 2005 under the heading “Corruption Fighters Poised to Move on Several Police”; seven, on‑line transcript of the ABC dated 12 November 2005 with the caption “No evidence of widespread corruption, Police Association says”; eight, the tape of the Stateline interview with Kerry Milte of 5 November 2005; nine, the tape of the excerpt of the ABC news bulletin at 7 p.m. on 12 November 2005; ten, tape of the excerpts from the Channel 7 bulletin of 12 November 2005 at 5 p.m., the Channel 7 news bulletin of 12 November 2005 at 6 p.m. and the Channel 9 news bulletin at 6 p.m. on 12 November 2005.
In general terms, the Stateline program of 4 November refers to the role of Mr Kerry Milte as an informer of the Victoria Police. It does contain references to the death of, or mishaps to, informers and, in particular, to a Mr Hodson who was killed in recent times. Without referring to the interview in detail, I note that Mr O’Doherty, who appears as senior counsel for the accused man Ian Ferguson, told me that when the program was broadcast he and those advising Mr Ferguson took the view that the better approach was that the program should be ignored.
Having had the opportunity to view the videotape, I agree that that is the best response which could be made in the context of this trial to that program. I do not consider that it has any potential to prejudice the fair trial of the accused and it is better that no specific direction be given in relation to it to the jury.
The other publications arise out of interviews by the media with Mr George Brouwer, the Director of the OPI, and the Assistant Director of the OPI, Mr Graham Ashton. They apparently relate to the report of the OPI which is to be tabled in parliament some time this week.
I have read, and reread, each of the articles and have taken the opportunity to again view each of the programs in my chambers. I shall not summarise them in detail or quote from them extensively. However, it is necessary for me to quote from parts of them, in particular those parts which have been brought to my attention, in order to illustrate fairly the basis on which the applications have been made by the accused and on which I am required to rule.
The Herald Sun article which I stated is entitled “Heat on Bent Police” was written by one Keith Moor. On p.3, in the first column there appears the following:
“Corruption investigators are closing in on several Victoria Police officers.
Office of Police Integrity director George Brouwer revealed yesterday that the OPI had uncovered convincing evidence of police corruption.
He told the Herald Sun these activities included:
STEALING while executing search warrants on homes.
DRUG dealing and giving the green light to other dealers.
INTIMIDATING fellow officers into not reporting corrupt activity.
CORRUPT associations with private investigators and security industry staff.
INAPPROPRIATE use of confidential Victoria Police information.USING the bank accounts of fellow officers to hide cash and avoid paying tax and child support ...”
On the same page at columns 4 to 5 there then appears the following:
“The OPI has held 24 secret hearings in which some officers have confessed to corrupt activity and others have dobbed in allegedly corrupt colleagues.
Mr Ashton said some officers had appeared before the secret hearings as a means of reporting corrupt activity without fear of reprisal from fellow police.
‘We have had police in our in‑camera hearings confessing their crimes and also implicating other police in serious criminal offences’, he said.
‘The OPI provides avenues that haven’t otherwise been available in terms of treatment for corruption, in that it may not always be our preference to bring officers before the courts, where they have a good record of being acquitted.
‘It might well be that we use our coercive process and the outcome is that the officer leaves the force.
‘In certain circumstances that is the most sufficient remedy to a particular problem’.”
On p.23 of that article, headed “The Untouchables”, it is fair to say that columns 1 and 2 set out matters pertaining to the background of Mr Brouwer and portray him in a favourable light. It concludes, perhaps with a little irony: “Brouwer, 64, prefers to win respect by getting results. He leaves the politicking to others.”
Column 5 of that page, and column 1 of p.24 of the same article, give details relating to the background of Mr Ashton and also portray him in a favourable and credible light.
The next article which I should quote from is that which was contained on p.1 of The Age newspaper, entitled “Corrupt police ‘protect’ organised crime bosses.” It commences in bold print with four boxes alongside the following subheadings, namely: “24 secret probes into police crime links; covert operations after 61 investigations; Vic police trying to undermine OPI; Bairnsdale, Geelong named ‘hot spots’.”
Columns 1 to 2, p.1, should be quoted in order to properly portray what they say, and I shall do so. They say the following:
“Victoria’s corruption watchdog has uncovered links between organised crime and corrupt police, including claims that criminal networks are being protected and ‘green‑lighted’.
There also are allegations that some corrupt police are directly involved in drug dealing.
The Office of Police Integrity’s director, George Brouwer, and assistant director for investigations Graham Ashton, told The Age the extent of the alleged links between organised crime and police corruption was still being assessed.
‘We have members of the criminal fraternities telling us about their police associations’, Mr Ashton said.
‘At the moment that’s intelligence. Some of it is evidence, but mostly it is intelligence and we are working to corroborate and flesh out that information and work out if it is information we can actively deal with in relation to working on those individuals.’
In an extensive briefing to The Age to mark the OPI’s first twelve months of operating under its extended powers, Mr Brouwer also revealed:
•He has held 24 secret hearings at which he has used his coercive powers to force people to answer questions, even if they incriminate themselves.
•He has started 61 major investigations in the past year. Some of them have been kept secret even from Victoria Police Chief Commissioner Christine Nixon.
•Some members of the police’s own anti‑ corruption unit, the Ethical Standards Department, have been trying to undermine his office through leaks to the media.
•A new OPI covert surveillance team started undercover operations about six weeks ago against selected targets.
Investigators using assumed identities will also be used.
Corruption prevention strategies have been implemented at Bairnsdale and Geelong police stations after analysis of patterns in complaints showed them to be ‘hot spots’.
•Financial institutions, including banks and credit card companies, have been forced to hand over records to help trace the financial dealings of suspected corrupt police.”
The third column reports that Mr Ashton said that corruption still existed within the police force despite the success of Operation Ceja in breaking links between corrupt Drug Squad officers and drug dealers. “We do still see corruption in the Victoria Police”, he said. “There’s still much work to be done.”
The same topic is continued on p.4 by the same journalist under the heading “Crooked Cops in Dread of Secret Sleuths.”
Column 1 commences as follows:
“The corrupt policeman was one of the old school. He had brushed aside previous attempts by internal investigators to catch him, confident he could bluff his way out of trouble with protestations of innocence.
But this time was different.
As he took the witness stand at the secret Office of Police Integrity hearing and was put under oath, he knew that the organisation’s power to force him to answer questions, even if the answers incriminated him, left him with nowhere to run. Under repeated questioning, he eventually rolled over.
‘He admitted his guilt and the involvement of others in the crimes’, says OPI assistant director of investigations Graham Ashton. ‘That officer had been through previous encounters within the force and had been maintaining his innocence all the way, implausible as it may seem.’
Later, members of Victoria Police’s Ethical Standards Department admitted to the director of Police Integrity, George Brouwer, that in the past their investigation ‘probably couldn’t have gone very far’.”
On the same page at columns 6‑7 there appears the following:
“Mr Brouwer said he had received full backing from Chief Commissioner Christine Nixon, who had initially been in favour of a crime commission but recently declared the strengthened OPI ‘a very good partner in terms of protecting Victoria and the community from corruption in policing’.
If previous police commands and state governments had set up a permanent body like the OPI, problems like those that led to the disbanding of the drug squad in 2002 could have been avoided. ‘It’s a bit naive for people in the past to have said there wasn’t anything to worry about’, Mr Brouwer said. ‘That wasn’t quite the case.’”
Finally, it is sufficient in relation to the on‑line articles for me to refer to that published by the Herald Sun and, in particular, the commencement which states:
“Corruption investigators are closing in on several Victoria Police officers. Office of Police Integrity director George Brouwer revealed yesterday that the OPI had uncovered convincing evidence of police corruption. He told the Herald Sun these activities included:
STEALING while executing search warrants on homes.
DRUG dealing and giving the green light to other dealers.
INTIMIDATING fellow officers into not reporting corrupt activity.
CORRUPT associations with private investigators and security industry staff.
INAPPROPRIATE use of confidential Victoria Police information.
USING the bank accounts of fellow officers to hide cash and avoid paying tax and child support ... “
It is in the context of those and like matters published in the media last Saturday that the applications have been made on behalf of each of the accused. I can, I think, usefully summarise the arguments made by Mr O’Doherty, senior counsel for the accused Ian Ferguson, and Mr Gucciardo, senior counsel for the accused Joanne Ferguson, as follows.
The first and perhaps principal argument focused on the reference in the articles and publications to the use by the OPI of its coercive powers and particularly the success from the use of them in obtaining information and confessions which could not otherwise have been extracted. In this context the argument on behalf of the accused focused significantly on the comment by Ashton in the Herald Sun article that the OPI provides avenues that are not otherwise available for dealing with corruption, and particularly on his comments: “It may not always be our preference to bring officers before the courts where they have a good record of being acquitted.”
It was contended that that comment seriously undermines the right of both of the accused to remain silent in the present trial. It was submitted that the timing of the comment is particularly pertinent as the Crown case will, hopefully, shortly close. It was submitted that in that context the accused may each feel compelled to give evidence where otherwise they may not have elected to do so.
Secondly, it was submitted, particularly by Mr Gucciardo, that the remarks attributed to Mr Brouwer and Mr Ashton constitute a significant denigration of the criminal justice system and a strong attack on the fundamental rights which inhere in each accused person. Those comments, it is argued, undermine basic principles such as the presumption of innocence, the right to silence and the right to be tried according to evidence which is admissible in a court of law.
Thirdly, counsel for the accused focused on statements by Brouwer and Ashton that as a result of the use by them of their coercive powers, they had uncovered a particular modus operandi which they say has been utilised by corrupt police officers under investigation by them. That modus operandi has some elements in common with the modus operandi which the Crown has alleged in this case against the accused man Ian Ferguson and particularly the elements of drug dealing, giving a green light to other drug dealers, inappropriate use of confidential Victoria Police information and the use of bank accounts to conceal and process the proceeds of their criminality.
Fourthly, counsel drew attention to the reference to Geelong and Bairnsdale police stations as being corruption “hot spots”. During the period in question the accused Joanne Ferguson was stationed at Corio police station. Apparently before Ian Ferguson joined the Drug Squad in 1997, he was stationed at the Geelong police station. However, there is no evidence to that effect so far.
Fifthly, both counsel drew my attention to what they say is the cumulative effect of all of the publications appearing, as they did, in close connection with each other on the first day of the weekend. It is in that context that they submitted that the live news bulletins were of some significance, given that they further highlight and emphasise the existence of police corruption particularly in relation to drug dealing.
In response, Mr Tovey’s arguments may be briefly summarised as follows. Firstly, the community, and in particular juries, are well familiar with the distinction between investigative bodies which have coercive powers and courts to which different rules apply. Jurors well understand that matters which might be elicited on inquisition are not necessarily admissible in a court of law. Secondly, the jury in this case has already been instructed and will well understand that throughout the trial the onus of proof in this case has lain, and remains, on the Crown. The jury has been instructed, and will well understand, that that no obligation lies on either accused to prove anything at all. Thus it is submitted that the remarks of Mr Brouwer and Mr Ashton, and particularly those of Mr Ashton recorded in the Herald Sun, do not subvert the directions which I have already given to the jury and do not subvert the accused’s right to silence.
Thirdly, Mr Tovey submitted that the fact that Mr Brouwer has claimed to have uncovered corruption in the police force is nothing new. There has already been significant publicity in this state of corruption in the Victoria Police Force and, in particular, in relation to the former Drug Squad. The critical issue in this case is a different issue, namely whether Ian Ferguson participated in the corruption in the manner alleged in count 1 of the presentment. The articles and the news broadcast were general in their nature. They did not make any implicit or explicit reference to Ian Ferguson and did not touch with any explicit reference on the facts of this case.
Fourthly, Mr Tovey submitted that the modus operandi said to be uncovered by Mr Brouwer is not something which is unexpected or something which could not be revealed without investigations of the type undertaken by Mr Brouwer. The Crown case against Ian Ferguson is not that the allegations which Duy Le makes against Ian Ferguson should be believed because those allegations are typical of the types of allegations one would expect against a corrupt police officer; rather, and significantly, the Crown case is that the allegations of Duy Le are corroborated in important respects by independent evidence adduced by the Crown. Therefore, Mr Tovey submitted, the evidence of Duy Le is not given added credibility because of the findings which Mr Brouwer claims to have made as a result of his investigative processes.
It is common ground between the parties that the basic principle which I must apply is that there must be evident a high degree of need in order to warrant the discharge of the jury without verdict by me. In R v Boland[1] the Full Court of the Supreme Court of Victoria stated:
“Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held.”
[1][1974] VR 849 at 866.
The acid test is whether the publications to which I have referred have the potential to prejudice the fair trial of the two accused and, if so, whether that prejudice can be negated by an appropriate direction given by me to the jury.
This trial commenced on 5 October and some 66 witnesses have given evidence before the jury. Nonetheless, if the fair trial of the accused has been prejudiced by reason of the publications to which I have referred, and if I am not confident that I can sufficiently dispel that prejudice with a direction to the jury, I consider it would be my duty to discharge the jury notwithstanding the extent to which the trial has now proceeded. Ultimately I consider that the right of each of the two accused to a fair trial is paramount and cannot be compromised by or subordinated to any considerations of public convenience, expense or expediency. It is therefore necessary for me to examine the articles and publications to determine whether they do have a potential prejudicial effect on the fair trial of each of the two accused.
The first matter relied on on behalf of the accused focuses on the remarks made by Ashton in the Herald Sun article in relation to the effectiveness of the coercive powers of the OPI in uncovering corruption and, in particular, in contrast, Ashton’s remarks that police officers have a good record of being acquitted in courts of law. It is regrettable, to say the least, that Mr Ashton said what he did, particularly in the context of an ongoing criminal trial involving allegations of police corruption. However, as contended by Mr Tovey, I do consider that the community and jurors are well aware of the difference between, on the one hand, the coercive powers now entrusted to investigative bodies and, on the other hand, the rules which govern the courts of this country.
In recent times there has been a significant burgeoning of investigative bodies which have powers to override basic common law rights. The existence of those bodies and the provision to them of such powers is well publicised and, on occasions, has been the subject of prominent public debate. In the publications Mr Ashton and Mr Brouwer do not criticise or attack the existence of the right to silence in court proceedings. The article in the Herald Sun newspaper does refer to the fact (if it be so) that police officers have a good record of being acquitted. However, juries well understand, and indeed are directed, as to the central importance in a criminal trial of the burden of proof and of the presumption of innocence. At the commencement of this trial I have already given the jury such a direction, which will be repeated in my final directions. The community, and in particular juries, well understand the difference between a finding said to have been made by investigative powers using inquisitorial facilities and an acquittal in a criminal trial based on the presumption of innocence.
In that context I do not consider that Mr Ashton’s remarks have the potential to undermine the accused’s right to silence in this case. I have already directed the jury at the outset of this trial that neither accused has any obligation to prove anything and that from the beginning to the end of the trial the onus of proof lies, and remains, on the shoulders of the Crown. That direction will of course be repeated, as it always is, in my final charge to the jury.
It has been my observation that the jury, which has been empanelled in this case, is an astute jury which has been particularly attentive to the evidence and to the directions which I have already given them. I am confident that they will understand, and indeed have already understood, the direction which I have given to them concerning the onus of proof. I am also confident that they will well understand that this proceeding is a criminal trial governed by important and fundamental principles rooted in our system of justice. I am confident that they will be not diverted from the direction which I have given them and which I will give them by the remarks of Mr Ashton, particularly if I were to now give them a direction to ignore whatever appeared in the media on the weekend.
For the same reasons I do not accept that the article fundamentally undermines the criminal justice system in the eyes of the jury as contended by Mr Gucciardo. The article is not, on its face, a criticism of the criminal justice system. If it were misconstrued to be so by a jury, I am confident that that impression can be dispelled by appropriate directions which I can give to the jury. First, it can be dispelled by a direction to ignore the publications which appeared in the weekend and, secondly, it can be appropriately dispelled in due course by the directions which I will give, repeating the directions I gave at the outset of this trial, as to the significance of the onus of proof and the presumption of innocence in a criminal trial.
The next matter raised by Mr O’Doherty and Mr Gucciardo concerns the claim by Mr Brouwer that he has uncovered by his investigations a particular modus operandi of corrupt police officers. The question is whether the reports of those findings lend credibility to the evidence of Duy Le. As I have stated, the modus operandi said to be uncovered by Mr Brouwer does have some elements in common with the conduct which Mr Duy Le and the Crown attribute to the accused man Ferguson in this case. However, the modus operandi revealed by Brouwer is not a modus operandi which only those who have participated in, or have investigated, corruption, would know about. The fact that Duy Le has alleged drug dealing with Ian Ferguson, that Ian Ferguson tacitly permitted him to continue his own drug dealing activities, and that Ian Ferguson used the LEAP system to alert Duy Le to any investigations of Duy Le’s activities, is not, in my view, given any credibility by the findings said to have been made by Brouwer. Indeed, as Mr Tovey correctly points out, the Crown case is not that Duy Le has made such allegations and therefore he should be believed; rather, the Crown case is that Duy Le’s evidence is corroborated by evidence in important respects such as evidence relating to the telephone records, financial betterment, the alleged purchase of the BMW by Ian Ferguson from Duy Le, and the alleged purchase of alcohol by Ian Ferguson from or through Duy Le.
The substance of the television reports did not, to my perception, take the allegations or matters any further. They did, however, give prominence to the publicity given to Mr Brouwer’s investigations and to the findings of corruption which he is said to have made in the police force. Similarly the articles in The Age and the Herald Sun were prominent; they were contained in the weekend newspapers, they each have headlines which are eye‑catching.
This jury is of course hearing a case involving allegations of police corruption. At the outset of the trial I did warn and direct the jury to ignore publicity which might occur concerning this case or matters touching on it. Nonetheless, it is realistic to expect that at least some of the jurors might have been attracted to and either read or watched, either wholly or partly, some of the publications which have been referred to me.
In a general sense, the publications do reinforce the allegations of the existence of corruption in the Victoria Police Force. They do not, however, contain any allegations against Ian Ferguson or contain any allegations specific to this case. Allegations of corruption in the Victoria Police Force, and in particular in the former Drug Squad, have been in the public domain for some time.
I do not consider that the publication of the general findings by Mr Brouwer cause any prejudice to the fair trial of Mr Ferguson and certainly do not cause such prejudice which could not be allayed by appropriate directions to be given by me to the jury.
The final matter referred to by counsel relates to the reference in the articles to the Bairnsdale and Geelong police stations being hot spots of corruption. In particular, that allegation is made in The Age on‑line publication (Exhibit 5) and also in the extract from the Channel 9 news bulletin on Saturday evening at 6 p.m. There is, in this case, no allegation of corruption arising out of, or relating to, either police station. It is true that Joanne Ferguson was at the relevant time a serving member at Corio police station but she did not, as I understand it, serve at the Geelong police station. No allegation is made in this trial of any corruption by her as a police officer. There is no evidence that Ian Ferguson was at Geelong police station. If Ian Ferguson does give evidence, or if the fact is referred to, that would occur, it would seem to me, in a few days’ time when the effect of the publications would, I consider, have sufficiently eroded.
In the above circumstances, to the extent that the publications might have an adverse effect on the case of the accused, I consider that any such effect can be suitably negated by a direction to be given by me to the jury.
I have carefully observed the jury in this case. As I have remarked in the course of argument, this jury has been extraordinarily attentive to the evidence and to the processes of this trial. For example, I observed them to follow very carefully and attentively the long and detailed accounting evidence of Mr Curtin. It is fair to say that I have not detected any wavering of concentration or attention by them. That circumstance indicates to me the extent to which the jury have adhered to the direction that I gave them at the outset of this trial, that they must decide the case on a close analysis of the evidence which is presented to them in this case. It also seems to me it demonstrates the seriousness with which this jury has approached its task. The jury has now been immersed in the evidence for a number of weeks. In those circumstances and in the context of the trial, I am confident that I would be able to give a direction which would be followed and adhered to by the jury that if they saw or read any of the offending material on the weekend, they are to ignore it and that they are to ignore any further similar material should it be published in the coming days.
For those reasons, I do not consider that there has been made out a need for me to discharge the jury. For those reasons, I propose to reject the applications. Before completing this ruling I should remark that I have not asked for any explanation by Mr Brouwer or by Mr Ashton in relation to the remarks they made to the media. However, it is appropriate for me to say this: if the publications to which I have referred do accurately report what they said to the media, it is, to say the least, regrettable that they saw fit to make those public comments in circumstances in which I would expect that they are well aware, at least in general terms, of the issues involved in cases such as this which are currently being tried in this court.
However, for the reasons which I have outlined, I reject the application to discharge a jury.
On the return to the jury court shortly I shall nonetheless give them a direction that they are to ignore anything that has come to their attention on the weekend and that they are to put out of their minds and ignore any similar or like publicity which may occur throughout the remainder of the trial.
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