R v Georgievski [2001] VSCA 65

R v Georgievski [2001] VSCA 65 - VSCA 2001 case summary — Zoe

[5]

The applicant was one of three men who, on 13 June 1999, went in search of heroin. The other two were Duane Wallis and George Josevski. In Wallis' car they went first to Fitzroy and then to Smith Street, Collingwood, where their efforts were unsuccessful. Whilst in Collingwood they met another man, John Tims, who joined them in Wallis' car. One of them suggested that they might be able to purchase some heroin in Richmond, following which Wallis drove the car to the neighbourhood of the Housing Commission flats in that suburb. There they saw another man, whom they described as "Asian". This man apparently communicated with them in some form of "sign language" which indicated that he could direct them to the outlet they were looking for. Josevski and Wallis followed him to a house at 38 Elizabeth Street where they were introduced to a girl ("Lee-Anne" or "Louise") who sold them two foils of what she said was heroin for $185.00. This money had been pooled from funds supplied by Josevski, Wallis and the applicant. They then returned to the car, apparently joined by the "Asian man", who seems to have regarded himself entitled to a share of the proceeds. Josevski and the applicant commenced to mix for themselves a "fix" whilst they were driving, but - to their alarm - were satisfied that whatever was in the purchased foils was not heroin. Regarding themselves as having been duped, they decided that they would return to confront the mendacious vendor and recover their money. Accordingly Wallis turned the car around and drove back to Elizabeth Street. Wallis parked the car in the vicinity of the house where the purchase had been made. It would seem that all of the occupants alighted, one armed with a knife and another with a steel bar. According to Josevski, who was the only one to give evidence, he went to the premises at No.38, whilst his three compatriots - whose sense of direction appears to have been dulled - ran to the front of the premises at No.36. What became of the "Asian man" is not clear from the evidence.

[6]

Whatever sins the occupiers of the house at No.36 might have committed in the past, one of them was not the sale of the substance which had been purchased earlier in the day. The first that those occupiers knew of the grievance of the applicant and his friends was when they heard, and then saw, three of them break through their front door and into their hallway. At about 11.30 a.m. those occupiers (Mr. McGrath and Ms O'Brien) were confronted by three angry young men - one carrying what appeared to be a baseball bat (this, it would seem, was the steel bar) and another of them wielding a knife. Not surprisingly, they were alarmed. The men were yelling out that they had been "ripped off" by a person whose name appeared to them to be Lee-Anne or Louise. With presence of mind Ms O'Brien told them that they must be looking for the girl next door. They went back out the front door of No.36, which they had broken in their forceful entry, and made their way to the next door house. Mr. McGrath set about ringing the Police who appear to have been in the vicinity and who arrived in very quick time. When they arrived they saw three men who were either outside or within the curtilage of the house at No.38 Elizabeth Street. O'Brien, who had previously closed her door, came out again when the police arrived and noticed another man hiding in her front yard. This man appears to have been Josevski who told her he was trying to evade "the Jacks". The four men were quickly rounded up and taken into custody. The three who were found outside No.38 were "grouped together" and made to sit on the footpath. At the time when they were "rounded up" Ms O'Brien made an identification of the three men seated on the footpath as the men who had confronted her in the house. McGrath later gave a description of those three men to the Police. Their identifications were, not surprisingly, less than perfect but it seemed that each agreed that the man wielding the "baseball bat" was the "tall one" with the "Mexican" moustache, (this man was clearly Tims); and the man wielding the knife was "of olive complexion". Photographs were shown to them in Court, and, again, Tims was identified as the man with the "baseball bat". There was no dispute that the man with the knife was Wallis. There appeared to be confusion between them as to whether Josevski or the applicant was the "third man", but each said that that person was wearing a "purple coloured top".

[8]

It was inevitable that the issue which dominated the trial of the applicant was one of identification. That issue arose because it was at the forefront of the Crown case that the three men who entered the premises at No.36 as trespassers were Wallis, Tims and the applicant, and that the man who had not entered those premises was Josevski. It does not seem to have been seriously argued that the "Asian man" was one of the entrants, largely because Ms. O'Brien and Mr. McGrath each said that none of the three entrants was of Asian appearance. What, however, is surprising to me is that the case was not presented on the basis that the four men, who believed that they had been "ripped off" and were returning with arms to get their money back, were acting in concert - at least in so far as the burglary was concerned. There was always going to be a dispute between the Crown and the applicant as to whether Josevski was one of the entrants, a dispute which was bound to bring the prosecution's identification evidence into sharp focus; as well as the reliability of its principal witness, Josevski. It seems to me that, in the circumstances proven by the undisputed evidence, it would have been well open to assert that, whichever three of the four entered the premises they did so pursuant to an agreement or understanding, to which all four were a party, that such force would be used to enter the premises as was necessary to achieve repayment of their moneys. The prosecution only relied upon the doctrine of concert to establish that the three who entered the house were all guilty of "aggravated" burglary - the jury being invited to find that the unarmed third man must have agreed that the entry would be one in which weapons would be carried. It is no doubt because the judge had directed the jury on the principles of concert that the jury were themselves perplexed as to why that doctrine could not have been used to attach guilt to the man who remained outside. They returned during their deliberations and asked that very question. However his Honour directed them, as I think he was bound to do, that they could not use the doctrine for that purpose because that had not been the way in which the Crown had presented its case.

[12]

At the end of the day, I do not think that this submission has been made good. I agree with Mr. Dann that there were many aspects of the identification evidence given by Mr. McGrath and Ms. O'Brien which impacted upon its reliability, particularly insofar as it related to the identification of the "third man" who entered the premises at No.36 Elizabeth Street; that is the man who was not carrying a weapon. There was, as I have said, a clear issue before the jury as to whether that man was the applicant or Josevski. The relevant evidence was said to derive from three separate occasions of identification. First, the observations made by McGrath and O'Brien in the "very short time" when they were confronted by the three men in the hallway of the premises; secondly when the "group of three men" were in the custody of the police on the footpath outside the premises; and finally when O'Brien and McGrath were giving evidence in court by reference to photographs which were shown to them. With regard to each occasion the evidence was far from satisfactory so far as it went to place the applicant as one of the three men who entered the premises. The opportunity to make an accurate identification in the hallway was extremely limited both in time and circumstance. O'Brien and McGrath each agreed that it was dark, that the time was "fleeting" and that they were "in fear", particularly of the men in the front who were carrying the weapons. It was not in dispute that, if the applicant was one of the men in the premises, he was not in possession of a weapon. The case was conducted on the basis that Wallis was carrying the knife and that the "baseball bat" (which was in fact a steel bar) was in the possession of the tallest of the men with the moustache, who could only have been Tims. That meant, of course, that if the applicant was present he could only have been "the third man". O'Brien initially said that he was the man "at the rear" and that he was the "shortest of the three "and had "short hair". When it was pointed out that this description could only fit Josevski, not the applicant (who was taller than Wallis and had shoulder length hair), she said that the "third man" must have been at the front, and not the back. When shown the photographs of the four men in court, she first identified Josevski as the "third man" in the premises; but then recanted saying that he was the man whom she later saw hiding in the yard of the premises who was not one of the three men in the house. McGrath said that he "never really got a good look at the man behind [those with the weapons], all I can really say he was wearing a purplish bomber jacket kind of thing" (the photographs - which were taken on the day - showed that Josevski was wearing a bomber jacket). Although at the trial and when shown the photographs, McGrath said that he thought the man with the knife was the applicant, he later conceded that he was "in error" and that Wallis was the man with the knife. He again agreed he could give no description of the "third man" who was behind the men with the weapons and accepted that, because Josevski was the man wearing the bomber jacket, he may have been the "third man". He finally said that the applicant may not have been one of the men in the house.

[15]

I have reviewed the evidence of identification in some detail not only to demonstrate its potential weaknesses vis a vis the applicant, but more particularly for the purposes of evaluating Mr. Dann's submission that his Honour had failed to use the authority of his office to isolate and identify those weaknesses for the benefit of the jury. In evaluating that submission it would, I think, be pointless to rehearse all of the directions which his Honour gave about the identification evidence. Those directions cover many transcript pages. It is sufficient for me to say that I have read those directions more than once and that it seems to me that the submission is unwarranted. It is true that, in the course of giving his directions, the judge did tell the jury that the evidence was a matter for them and that they were not bound by the views which he might have of it, or any comments which he might make about it. However, when read as a whole, his directions clearly identified the factors in the evidence which "may affect the consideration of the evidence in the circumstances of the particular case"[5], and were cogent and effective in relation to those circumstances[6]. In my view they went beyond a warning of a general kind and were sufficient to warrant the description of identifying the weaknesses to which I have referred as matters of significance undermining the reliability of the evidence[7]. It seems to me that his Honour identified all these weaknesses in terms which made it abundantly clear that they impacted upon the reliability of the identification evidence as a whole, and in respect of each occasion on which it was given. Mr. Dann submitted that his Honour "undid the good work" by suggesting to the jury that ultimately it was for them to determine whether the matters referred to might depreciate or enhance the powers of observation of O'Brien and McGrath. However, when read as a whole, the charge makes it obvious that his Honour was telling the jury that the identification evidence was pitted with weaknesses of a kind which depreciated its reliability. There is no set formula of words which is to be given to a jury for the purposes of isolating apparent weaknesses which the jury should take into account. In the long run the question for an appellate court is whether the instructions, when read as a whole, were sufficient to bring home to the jury that there were weaknesses in the evidence of identification which must be taken into account by the tribunal of fact in determining whether they can properly rely upon such evidence. I am satisfied that, so read, his Honour's directions adequately isolated and identified the weaknesses which undoubtedly existed in this case. Accordingly, as I have said, this ground of appeal is not made out.

[38]

Not surprisingly, counsel for Tims did not take issue with the proposed course. Indeed he urged the judge not to give any warning at all in respect of Josevski's evidence. This was, no doubt, because Josevski had said that Tims was not, in any way, implicated in the escapade. It is, perhaps, surprising that Mr. Dann, who appeared for the applicant at trial, did not urge his Honour to give an accomplice warning - something which he conceded on this application. Perhaps both he and the judge were misled by the way in which the Crown was presenting its case - that is by charging only Wallis, Tims and the applicant with aggravated burglary of No.36 and by leading evidence from Josevski as a person not implicated in that crime. However, this was not a reason for failing to treat Josevski's evidence as the evidence of an accomplice if he was clearly particeps criminis in the offence charged, or it was open to the jury to find that he was. Where the evidence revealed, as I think it did, that Josevski was party to a common design with the others to return to the premises at Elizabeth Street, armed, and with a view to recovering money from the person who had "duped" them with such force as was necessary to achieve that object, I would have thought it clear that Josevski - whether he entered the house at No.36 or not - was acting in concert with those who did. Indeed I did not understand Mr. McArdle to submit otherwise. But, in any event, there was an issue for the jury to determine which, in itself, required the giving of a warning[12]. Although Mr. McArdle contended that the judge's direction to the jury that they should regard Josevski as a "potentially dangerous witness" and "should treat his evidence with caution" was sufficient to meet the circumstances, there seems to me to be a discrete difference between such a direction and a warning, given with the authority of the judge's office, that "it would be dangerous to convict upon the uncorroborated testimony of Josevski unless thoroughly convinced of its truth and accuracy". The former direction focusses attention only upon the potential unreliability of Josevski as a witness whereas an "accomplice warning" focusses on the unsafety of convicting upon such evidence - the core of the jury's function. The giving of such a warning would also have required attention to be given to whether there was any reliable corroboration of Josevski's evidence insofar as it implicated the applicant. Such corroboration could only have been found in the identification evidence which, as I have previously said, was anything but reliable so far as it concerned the applicant.

At a glance

Court

Decision date

Before

Source

Judgment (61 paragraphs)

Parties