Georgiadis & Ors v R [2002] TASSC 58

Georgiadis & Ors v R [2002] TASSC 58 - TASSC 2002 case summary — Zoe

[97]

So the first proposition is that all the evidence, written or oral, that tends to prove the existence of one or more of the three alternative conspiracies charged during the period specified in the counts is admissible against each of the accused to prove the first issue of whether there was a conspiracy as charged. But, on the issue of whether any one of the accused was a party to one of the three alternative conspiracies charged, your deliberations are confined to the evidence, written and oral, of words and acts, done in furtherance of the conspiracy, that occurred during the period that you are satisfied that that accused was selling, in the case of Belbin, Bostock and Kelly, or buying, in the case of Georgiadis, Theodosis and Lamont, off the ticket abalone. For example, anything that the others might have said or done after Mr Bostock retired cannot be taken into account when considering the issue of whether he was a party to one of the charged conspiracies in the case against him and similarly, nothing that was said and done by the others in furtherance of the conspiracy prior to Mr Kelly selling off the ticket abalone to Gamble can be taken into account when considering the question of whether Mr Kelly was a party to any charged conspiracy. The same thing goes for Mr Lamont who, as I have said, on the evidence of Mr Jones had no dealings with off the ticket abalone until the time he - that's Jones - went off sick with a bowel operation. During the period that you are satisfied that any one of the accused was a party to the conspiracy you can take into account the words and acts of those whom you are satisfied were at that time co-conspirators provided that those words and acts were in furtherance of the conspiracy charged. A substantial illustration of this proposition concerns the case against Mr Bostock. Remember that the conspiracy charged is to defraud/pervert justice/commit the crime and the Crown case is that the substantial evidence of that is the dealings of abalone. So, in that case- that's against Mr Bostock - the words and deeds of his deck hand, Mr Belbin are admissible against Mr Bostock, I should add - provided of course they were done in furtherance of the conspiracy. Not everything he said, but everything that he said and did in furtherance of the conspiracy."

[125]

59 Counsel for the appellant Belbin mentioned no hearsay evidence implicating him in a conspiracy. Counsel for the joint appellants Georgiadis and Theodosis, could only point to one item of hearsay evidence (given by two witnesses, Williams and Gamble) implicating Georgiadis in a conspiracy, and none implicating Theodosis. He could give no other examples. The evidence concerned what occurred in about the winter of 1992 and was as follows. Gamble gave evidence that the appellant Georgiadis telephoned him and asked him to buy some cheap abalone. As a result he, Gamble, told Williams that Georgiadis wanted them to buy cheap abalone off the ticket. Williams' response was that he was not happy about the idea and that it was too risky and he said he would speak to Georgiadis. When Gamble later spoke to Georgiadis the latter confirmed that he wanted them to go ahead and purchase off the ticket abalone. As a result of that, Gamble then contacted Belbin and made arrangements for the purchase of off the ticket abalone. Georgiadis instructed Gamble as to how much he wanted and what to pay for it. The evidence of Williams was that Gamble told him that he had just had a telephone conversation with Georgiadis, who wanted them to purchase off the ticket abalone. Williams said that he had no memory of discussing with Georgiadis that Gamble had told him of that request, but he, Williams, discussed with Georgiadis what the latter wanted them to do and he told Georgiadis that he was very unhappy with the idea and that it was something that he did not think they should get involved in. The response of Georgiadis was that he was unwilling to hear him on the matter. He said that the business was not making money, in fact it was losing money, and he wanted to purchase off the ticket abalone for that reason. In summary, therefore, both Gamble and Williams gave evidence of the initiation of the conspiracy by Georgiadis. Their evidence that Gamble told Williams that he had been so requested by Georgiadis was hearsay evidence against the latter. It was not in fact admissible against him pursuant to the co-conspirators rule because it was evidence of the initial formation of the conspiracy and not evidence of a statement made in furtherance of the conspiracy. R v Masters (supra) at 461.

[128]

62 A considerable amount of evidence given at the trial was admissible under the co-conspirators rule, but it was admissible in any event without the rule's application. For example, evidence that Williams and Gamble were engaged in purchasing off the ticket abalone for the Tasmanian company, recording its purchase in records by the use of codes and forwarding it to Queensland with supporting documents that also used codes to disguise that it was abalone, was admissible against the joint appellants without the need for reliance on the co-conspirators rule. At a late stage of the trial, the learned trial judge commented that so much had been made of the co-conspirators rule before the case began, but that it had "really fizzled away", and he referred to the evidence that might have been thought to be admissible under the rule as admissible in any event as "ordinary circumstantial evidence". He was correct in what he said. It was submitted for the appellants that as there were four conspiracies alleged by the Crown, with some common parties and some not, with conspirators entering and leaving the various conspiracies, the learned trial judge should have identified which of the evidence, admissible under the co-conspirators rule, was admissible against each of them and on which counts. In our view, it would have been an enormous task for the judge to have done so and it would not have benefited the jury. So much detail would have had to be provided to the jury that they could not have absorbed, comprehended and applied it in any sensible way. The directions that were given were simple and easy to understand. They were sufficient for the purpose of enabling the jury to understand their duty and what evidence could be used against the various accused persons. There were six people standing trial. There were six counts. In all, the six accused respectively faced a total of 15 charges and to allocate the evidence admissible under the co-conspirators rule between them could not have been done successfully, item by item. The combinations and permutations would simply have been too many for the learned judge to have successfully coped with for the purpose of informing the jury.

[166]

" Circumstantial evidence direction: I have already referred to this when directing you about the law concerning perversion of justice charged against Ms Theodosis on count 6, but it is important that I return to it with respect to all the charges of conspiracy. Direct evidence of the commission of a crime means a full admission of guilt by an accused or an account from a witness who said that he or she saw the crime being committed. Because of its nature, there is seldom direct evidence of the commission of the crime of conspiracy unless there is a full admission or a witness states that he made an oral or written agreement with someone else or he overheard that being done. How else could you have direct evidence that there was an unlawful conscious understanding of a common design between two or more people? In this case, as in many conspiracy cases, ... virtually the whole of the evidence is indirect or circumstantial evidence The evidence on which the Crown relies is like a number of bricks. The Crown submission to you is that brick by brick, the pieces of circumstantial evidence all fit together in such a way that in the end the only rational explanation of all that evidence is that the crime charged was committed. For the defence it is submitted - and each accused submitted this, or it was submitted on behalf of each accused, that there are insufficient acceptable bricks, or that the bricks don't fit together so you can't say that the only rational explanation of the evidence that you accept is that the crime charged was committed. The direction I give you is quite simple. In this case, you cannot convict any one of the accused of the crime of conspiracy unless you are satisfied beyond reasonable doubt from the evidence that you accept, that there is no other rational explanation for that evidence other than that accused is guilty of that crime. ... If there is any rational or reasonable explanation of the evidence, other than guilt - other than that the accused is guilty of the crime of conspiracy, that you cannot exclude ... you must acquit. So it is really a simple proposition, ladies and gentlemen. You say well, look, this is all the evidence we accept. Is there any reasonable explanation for it? We think about what Mr Glynn put to us, we think about what Mr Hodgman put to us, we consider all the evidence, all the other submissions and having done that, is there any - is there something about this evidence that is a reasonable explanation other than guilt - no - there isn't, then guilt follows. If there is, or if there is some rational possibility you can't exclude - `oh, well that's a reasonable explanation for that evidence -` then you've got to acquit. That is what circumstantial evidence means. It is different from direct evidence where somebody says " I saw the burglar climb in the window" - well, you either believe the witness or you don't. But in a circumstantial evidence case, you've got to be able to say from all the evidence we accept, is there any other rational or reasonable explanation other than guilt because if there is, we can't exclude some rational or reasonable explanation other than guilt, then we must acquit.

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Judgment (261 paragraphs)

Georgiadis & Ors v R [2002] TASSC 58 (30 August 2002)

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Cases Cited (18)