R v Georgiev [2001] VSCA 18

R v Georgiev [2001] VSCA 18 - VSCA 2001 case summary — Zoe

[13]

The present case is unusual, in that on the Crown case the killing had its origin in the criminal activities of the applicant and his partner, Juricic, those criminal activities being the very thing in respect of which the direction is now said to have been essential. It would not have been a simple matter, but it would have been possible, to construct a direction which, while warning the jury not to make an impermissible use of the evidence of the applicant's drug dealing, yet told them how they could use it as bearing on the existence of a motive for the killing. The Crown case was that this killing had a clear motive and that this motive had been admitted by the applicant in the course of his confession to Joanne Guziak, that confession indeed being explicable only by reference to the background circumstances giving rise to the motive, including Pink's knifing of Juricic and Pink's theft of the heroin and cash which he was carrying (which we shall call for brevity "the Pink incident"). The Crown always made it clear that the Pink incident was part of its case as affording the motive for the killing, but the only reference in the judge's charge to this matter of motive is an extremely brief mention**,** in the summary of the Crown's final address, of the argument that the motive was the cutting of Juricic's hand by the deceased. In this passage the judge by a slip in two places refers to "the motive for the robbery", but it is not suggested that the jury can have been in any doubt that the Crown was concerned with the motive for the killing. But the reference is a very short one, and all that is mentioned is the physical injury to Juricic, no mention being made of the theft of heroin and a substantial sum of money, both of which formed part of the property of the trafficking partnership. His Honour did not give the jury what may be described as the usual direction about motive. The omission of such a direction can only have assisted the accused in a case where a clear and plausible motive was assigned by the Crown and in addition an admission of that motive formed part of the confession on which the Crown heavily relied.

[42]

It is by no means uncommon for counsel to submit that a lie should not be left to a jury as possibly showing consciousness of guilt of the crime charged because the lie does not relate to a material fact: in this instance, as already explained, the drug dealing was a most important consideration. On the other hand it may be said to be unusual for counsel to submit that an alleged lie should not be left to the jury because the jury could not possibly be satisfied, having regard to possible innocent explanations, that the lie was told because of consciousness of guilt of the crime charged. (We note in passing that in Edwards v. R.[14] Deane, Dawson and Gaudron JJ. thought that the innocent explanation was so plausible that the lie could not have been probative of guilt, but in that case the existence of the innocent explanation was not contested by the prosecution; indeed it had been suggested by it.) In the present case the applicant's counsel were content to have the question treated as a jury question. They made this clear when the question was expressly raised shortly before the evidence in the case was completed and, notwithstanding that the charge afforded them considerable time for reconsideration, they at no stage sought to depart from the position they had taken up. The point was not raised until the grounds of appeal were amended at a very late stage. We are not prepared to say that the judge should have withdrawn this alleged lie from the jury's consideration on the ground that they could not have been satisfied that the reason for the telling of the lie was as the Crown alleged. True it is that the jury were required to consider as a possible explanation a desire of the applicant not to incriminate himself as a drug dealer. On the other hand, the jury were entitled to have regard to the fact that the applicant faced a charge of what is, from a practical point of view, the most serious crime known to the law and to take into account the fact that he was willing in the course of his interview to admit the commission of drug offences. It is of significance here that his counsel, who were in a good position to form a judgment, chose not to invite the judge to withdraw the question from the jury.

[80]

The issue raised by both grounds 2 and 4 is what is the proper course for a judge to take where evidence has a multiple admissibility or a multiple relevance, as it has been called. Wigmore in his work on Evidence (Tillers Revision, 1983)[32] describes the issue as one of "multiple admissibility; evidence applicable to more than one purpose". In Cross on Evidence (loose-leaf Australian edition)[33] the matter is described as "multiple relevance and admissibility". To my way of thinking multiple admissibility is a misnomer, for there is no great difficulty if evidence is admissible on a number of grounds, except to the extent that for some purposes a direction may have to be given as to how it might be used. The problem really arises where evidence adduced has an apparently multiple relevance but "limited admissibility", for that, as the discussion in both works makes clear, involves the evidence being relevant for several purposes, though admissible for only one purpose, or sometimes for a limited number of purposes. The term "limited admissibility" is now adopted in "The New Wigmore. A Treatise on Evidence" (1996) by Professor Leonard in what is the only, unnumbered volume of a new, reorganised edition of Wigmore. The first chapter analyses the subject in detail on a largely theoretical basis but the author discusses the form of instructions to juries in para.1.11.5 and the American rules as to appellate review of them in para.1.11.6.[34] The evidence is not admissible generally, for example, in cases of hearsay, propensity and the like. In such cases the evidence is inadmissible on one or more grounds, despite the fact that it may be used for a particular purpose (or purposes) and is thereby admissible for that purpose. The evidence which otherwise would be excluded as inadmissible may well be relevant to the facts in issue as being capable of being seen by the jury as bearing upon the likelihood that the alleged offence can be made out. That is clearly so in the case of hearsay and more arguably so in the case of propensity, although Lowery v. The Queen[35] and a number of more recent cases appear to accept its general relevance. In such cases it is accepted that the judge is obliged to explain how the evidence may be used, for its admissibility is limited and an absence of explanation could easily result in a miscarriage of justice.[36]

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Judgment (184 paragraphs)

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