R v Georgiou R v Harrison

Regina (Crown) Konstantinos Georgiou (appellant) PARTIES: Regina (Crown) Bruce Malcolm Harrison (appellant)

D Arnott (Crown) COUNSEL: G Wendler (appellant Georgiou) E Fullerton SC (appellant Harrison)

S Kavanagh (Solicitor for Public Prosecutions) SOLICITORS: Jordan Djundja Lawyers (appellant Georgiou) Michael Croke and Co (appellant Harrison)

IN THE COURT OF CRIMINAL APPEAL 2004/1783 2004/2184

SPIGELMAN CJ SULLY J HIDDEN J

18 May 2005 REGINA v Konstantinos GEORGIOU REGINA v Bruce Malcolm HARRISON Judgment 1 SPIGELMAN CJ: I agree with Hidden J. 2 SULLY J: I agree with Hidden J. 3 HIDDEN J: Early in 2003 the appellants, Konstantinos Georgiou and Bruce Malcolm Harrison, were tried before Greg James J and a jury on three counts of murder and one count of attempted murder. The jury were directed to acquit them of the count of attempted murder but they were found guilty of the three counts of murder. Both of them were later sentenced to lengthy terms of imprisonment. They have appealed against conviction only.

Crown case 4 The three deceased, Michael Kulakowski, Sasha Milenkovic and Rick De Stoop, were all members of the "Bandidos" Motorcycle Club, as was a fourth man, Robin David, who was the subject of the charge of attempted murder. The appellants were members of the "Rebels" Motorcycle Club. It was alleged that they shot the three deceased in the basement of the Blackmarket Café, a twenty-four hour operating night club in Sydney, in the early afternoon of Sunday, 9 November 1997. The killings had the appearance of planned executions, although the motive for them was unclear. 5 There was no eyewitness to the shootings. However, there was a body of circumstantial evidence against the appellants, including ballistics and forensic biological evidence, most of which it is unnecessary to recite for the purpose of these appeals. 6 An important Crown witness was Ms Angela Konz, who was the girlfriend of the deceased, Michael Kulakowski. She was with her boyfriend and the other three Bandidos members when they arrived at the nightclub late in the morning of the day of the shooting. The group went to a bar on the ground floor. Later, the three deceased left her at the bar and walked towards a door leading to the basement. Some minutes later she heard the sound of gunshots coming from the basement. She said that shortly thereafter she saw the appellants, whom she knew, hurriedly leave the club by the front door. She saw that Harrison, who was behind Georgiou, was holding a gun. It will be necessary to examine some of Ms Konz's evidence in greater detail when dealing with two of Georgiou's grounds of appeal. Robin David also gave evidence but, again, it is unnecessary to refer to it for present purposes. 7 Outside the nightclub the appellants got into a car, which was driven away by Georgiou. Harrison had a gunshot wound to his left wrist. Two police officers, who happened to be in the area in a police vehicle, pursued them. During the pursuit witnesses saw a pistol thrown from Georgiou's car, and another pistol was found by a pedestrian along the route which the car had taken. These weapons were later linked by ballistic evidence to the shootings. The car stopped in the Surry Hills area and the appellants ran from it. Georgiou got away but Harrison was apprehended. He sought to explain the wound to his wrist otherwise than as a gunshot wound. Georgiou was arrested about two months later, attempting to leave Australia on a ship bound for Japan.

Defence case 8 Both appellants gave evidence which, generally speaking, was consistent. It was their case that they had gone to the nightclub in the early afternoon of the day in question at the request of one Reid Kingston, who was also a member of the Rebels Motorcycle Club. Kingston had been at the nightclub when the group of Bandidos had arrived and, for reasons which need not be examined, he feared that they might cause trouble. He wanted to speak to them but felt that he needed "backup." Accordingly, he went to Georgiou's home and they returned to the nightclub in Georgiou's car, picking up Harrison on the way. 9 Having arrived, Kingston directed Georgiou to wait outside and keep watch. According to Harrison, they were joined by another member of the Rebels, whose identity he was afraid to reveal because he was "still around." Those three men entered the nightclub, leaving Georgiou outside. Kingston directed Harrison to keep watch at the door leading to the basement. Kingston and the other Rebel went downstairs to the basement with the three deceased and the door was closed behind them. Robin David remained upstairs near the door, not far from Harrison. 10 Shortly thereafter there was the sound of gunshots. David was pulling at the door when it suddenly burst open. There were further shots and Harrison sustained the wound to his wrist. Kingston came through the basement door, "panicking", thrust a pistol into Harrison's hand and told him to get rid of it. They ran out of the nightclub, Harrison joined Georgiou outside, and the two of them fled from the scene in Georgiou's car. During the journey Harrison threw the pistol which Kingston had given him out of the car. Georgiou denied knowledge of any other pistol having been thrown from the car or, indeed, of any pistol having been taken to the nightclub when they had travelled there earlier. He acknowledged that the two pistols which were later found and linked to the shootings were his, but said that he had given them to Kingston and understood that at that time they were kept at the Rebels clubhouse. 11 It will be necessary to return to the appellants' evidence, in the light of the history of the proceedings, when considering the ground of appeal which is pursued by both of them.

The appeal 12 In this Court the appellant Georgiou was represented by Mr Wendler, who had also appeared for him at the trial, and the appellant Harrison by Ms Fullerton SC, who did not appear at the trial. Both appellants pursued a ground of appeal that the trial judge misdirected the jury on the issue of lies said to have been told by them. Georgiou relied on two further grounds of appeal arising from the evidence of Angela Konz. It is convenient to deal firstly with the ground concerning lies. For the most part, Mr Wendler adopted the submissions on this ground of Ms Fullerton.

Lies 13 To understand this ground of appeal it is necessary to sketch some background. This was the third trial of the matter. In 1999 the appellants had been tried before Dowd J, and had been found guilty of the three counts of murder and the count of attempted murder. Their appeals against those convictions were allowed and a new trial was ordered: R v Harrison and Georgiou [2001] NSWCCA 464. A further trial before Howie J was aborted because of adverse publicity, but nothing which occurred in that trial is material for present purposes. What is significant is that in the first trial the appellants mounted defence cases which differed from each other, and which were inconsistent with the case which they presented at the third trial. 14 Georgiou had raised an alibi, claiming in evidence that he had been at home when the shooting occurred. Harrison had adhered in evidence to an account he had given to police the day after the shooting. The effect of that account was that he and Georgiou had gone to the nightclub on the morning in question, for no particular reason. He denied any involvement in the shooting or any knowledge of the circumstances giving rise to it. He said that he just happened to be near the door leading to the basement when the incident occurred, and he was shot in the wrist. He ran out of the club, along with others. Georgiou, seeing that he was injured, took him to his car and they set off, intending to drive to a hospital. He denied having held a gun inside the nightclub or having thrown anything out of the car window. 15 Indeed, his counsel at the third trial delivered an opening address to the jury after the Crown prosecutor's opening, in which he asserted that his client "denies that he held the gun at any time inside the Black Market Café." In evidence, Harrison acknowledged that that was not correct and said that he had given his counsel instructions to the contrary in the middle of the trial. He admitted, generally, that his account to police and in his evidence at the first trial was false. 16 Georgiou also admitted in evidence that the alibi he had raised at the first trial was false. He said that he had then been afraid to reveal what he knew of the incident, particularly the involvement of Reid Kingston, for fear of reprisals against his family and himself. However, Kingston later died and, when he heard this, he felt able to reveal the true position. He did so to his solicitors at the commencement of the third trial, although he had known of Kingston's death for some considerable time by then. 17 The effect of Harrison's evidence was that he also felt able to reveal his knowledge of the incident only after he heard of Kingston's death. However, even though he too knew of that death for a considerable time before the third trial, he delayed changing his instructions to his legal representatives because he had felt "locked in" to the defence which he had advanced in the first trial. 18 Georgiou gave evidence first, and it was not until Harrison gave his evidence that it became apparent that both their accounts were different from those which they had previously advanced and were now consistent with each other. The Crown prosecutor at the trial (who also did not appear in this Court) put it to Harrison that he had fashioned his evidence so that it "dovetails with Mr Georgiou's account". This he denied. In the course of the Crown prosecutor's final address, the learned trial judge raised with defence counsel whether it was open to her to submit that the appellants had "put their heads together to tell a mutual false account". Both counsel accepted that it was, and Mr Wendler did not consider it necessary for Georgiou to be recalled for cross-examination about it. The Crown prosecutor addressed the jury accordingly, submitting that the new accounts of both appellants should be rejected. In particular, she argued that they had seized an opportunity to concoct a joint story or, at least, that Harrison had tailored his evidence so that it would broadly accord with that of Georgiou. 19 His Honour dealt with the question of lies at various stages of the summing-up. The admitted lies by Georgiou about his alibi, and by Harrison about his possession of a gun in the night club, were left to the jury as part of the Crown's circumstantial case. However, in the context of directions about the need for separate consideration of the case against each of the appellants, his Honour said: Each of the accused has admitted telling lies on a prior occasion or occasions, including Mr Harrison in the record of interview to the police and Mr Georgiou in respect of the false alibi and the accounts they had given in previous proceedings the fact that they had done that, is material that would only be capable of being used against the person who had done it or told the lie. It is the Crown case here, however, that they have abandoned their previous lying accounts in order to tell here another lie, for the first time raising this concept that it was not them who did it but Reid Kingston and the unknown other Rebel or someone else. So that they have in this trial put their heads together to give this account and to support each other in a lie which, if you are satisfied is a lie, you can take into account not only against the maker but if you are satisfied they put their heads together to produce that account, against not only the maker but also his co-accused. 20 In relation to lies generally, his Honour gave directions in accordance with Edwards v The Queen (1993) 178 CLR 193. Within those directions his Honour also dealt with evidence of flight, that is, the appellants' hasty departure from the nightclub and Georgiou's later attempt to leave Australia. 21 In the course of further directions about the separate consideration of the case against each appellant, his Honour said: I have already directed you to evidence that is admissible against one but not against the other, … principally the lies; unless you say that what is said here was a lie that they had both put their heads together to tell in recognition that their previous accounts were not such as would divert from the truth. Now it's in that circumstance and only in that circumstance that you can use the finding that you might make, that one has told you a lie in the witness box concerning who committed the crime, against the other. 22 Finally, in the course of directions about the fact that each of the accused had chosen to give evidence, his Honour said: …if you decide to reject the evidence of the accused, that of itself does not establish the Crown case. You have to look at the other evidence to see if you are, notwithstanding the objective evidence of the accused, satisfied beyond reasonable doubt. But if you conclude that the accused has deliberately lied here before you, in order to deceive you, as to his involvement, that is a matter which you can consider in conjunction with the whole of the other proved circumstances, to decide whether the accused is guilty of the offence charged. Further, if you conclude still further that he and the other accused have put their heads together to tell a mutual false story told to deceive you, you can take that lie into account against both of them.

Although these directions were given in the middle of his Honour's summary of Mr Harrison's evidence, it appears that they were meant to apply to both appellants. 23 No complaint was made about any of these directions by counsel for either appellant at the trial, and no further direction was sought. However, in this Court it was submitted that his Honour had fallen into error in two respects. 24 Firstly, it was argued that his Honour should not have suggested to the jury that, if they concluded that the account of each of the appellants in evidence at the trial was a concoction, they could treat that evidence as a lie demonstrating a consciousness of guilt. Ms Fullerton noted that his Honour had put the admitted lies by Georgiou about his alibi and by Harrison about his possession of a gun in the nightclub as part of the Crown's circumstantial case, and she accepted that they were properly left as evidence of consciousness of guilt. She noted, however, that the Crown prosecutor at the trial did not put her suggestion that the appellants had concocted the new account on that basis. Rather, she relied on it only as a matter going to their credibility. Yet his Honour's Edwards directions were expressed to relate to lies generally and, in the passages from the summing up quoted above, were applied to that new account. 25 This case, however, is very different from Zoneff v The Queen (2000) 200 CLR 234, in which the majority of the High Court held that an Edwards direction was inappropriate. That appellant was on trial for a number of charges of a fraudulent nature and in cross examination of him the Crown prosecutor put to him that he had lied, not only in his dealings with the alleged victims but also in a number of the answers he had given in evidence. It seems, however, that the cross examination was directed only to his credibility and it was not put that he had lied out of a consciousness of guilt. Because the appellant had been unrepresented at the trial, the prosecutor did not address the jury. Their Honours held that the trial judge should have done no more than direct the jury that it was for them to decide whether he had lied, and warn them that they should not conclude guilt simply from the fact that he had: see the joint judgment at [23]. 26 In the present case it is accepted that the admitted lies of both appellants were properly left as evidence of consciousness of guilt. To direct the jury in such a way as to distinguish between those lies and other alleged lies said to bear only upon their credibility has an air of unreality about it. Lies, admitted or alleged, came to loom large in the case. If the jury found that the appellants had concocted their evidence, they would almost inevitably have concluded that they did so because they were guilty. That process of reasoning was open to them but, before embarking upon it, they needed to be instructed as to the care with which it should be undertaken. 27 It should not be forgotten that the purpose of the Edwards directions is to achieve fairness to an accused who is said to have lied about any material matter. They are designed to ensure that a jury does not leap from the finding of a lie to the conclusion of guilt before considering other factors which, in the experience of the courts, could provide an innocent explanation for the lie. In the joint judgment in Zoneff, their Honours said at [16]: There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards -type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt.

In my view, this was such a case. 28 The second complaint was that his Honour directed the jury that, if they were satisfied that the appellants had jointly concocted their evidence, they could use the lies of each of them against the other. Ms Fullerton submitted that this led to a "confusing intermingling" of the two cases. Mr Wendler expressed it as "treating the case as a sort of amalgam", thereby derogating from the requirement that the case against each accused be considered separately. While accepting that it had been open to the Crown prosecutor to put joint concoction to the jury, it was argued that the lies of each appellant should have been considered only in relation to his case. 29 I do not believe that I have encountered a direction such as his Honour gave, and counsel were not able to take us to any authority on the point. This may well be because the situation with which his Honour was dealing was quite unusual. That said, this argument also has an air of unreality about it. One might question whether it was appropriate to give such a direction but, if the jury were satisfied that the appellants had collaborated to give a false account in their evidence, it is difficult to see how it could have caused any unfairness. Of course, it remained necessary for the jury to consider separately in relation to each appellant whether that lie was the product of a consciousness of guilt of the crime charged. Read as a whole, his Honour's directions on lies and separate consideration of the case against each accused would have made that clear. 30 Ms Fullerton referred us to another passage of the summing up in which, she argued, his Honour had again intermingled the two cases. It is unnecessary to set that passage out. It is sufficient to say that, read in its context, it relates only to the case against Georgiou. 31 In my view, nothing in his Honour's directions on lies could have misled the jury from their task and have given rise to a miscarriage of justice. This ground is not made out. Let me turn, then, to the two grounds of appeal argued on behalf of Georgiou.

Evidence of Angela Konz 32 The first of these grounds relates to Ms Konz's evidence of something she heard said by the deceased, Sasha Milenkovic. She said that, when she and the group of Bandidos arrived at the nightclub, Justin Culshaw was "on the door." He was a member of the Rebels who was employed as a security officer at the nightclub, although it seems that he was not on duty that morning. She knew Culshaw, and she said that he and Georgiou were friends. 33 Her evidence was that, after she and her companions had sat down in the bar area, Milenkovic left that area and went towards the front door. He returned, and made to Michael Kulakowski the statement which is the subject of this ground. According to Ms Konz, he "told Mick that Justin and Kon wanted to have a word with him - with them". Kulakowski replied, "Yeah, fine." He told Ms Konz that he would be five minutes and asked her to wait at the bar for him. He said something to Rick De Stoop which she did not hear, and it was then that the three men walked towards the door leading to the basement. 34 It was the Crown case that, in the statement attributed to Milenkovic, "Justin" was a reference to Culshaw and "Kon" to Georgiou. At the trial Mr Wendler objected to the evidence on the basis that it was hearsay which did not fall into any exception under the Evidence Act and that, in any event, the Crown had not given the notice required by s67 of the Act of its intention to adduce hearsay evidence. Further, in the alternative, he argued that the balancing exercise required by s137 of the Act required the rejection of the evidence. 35 Dowd J had rejected the evidence on that last basis in the first trial, and Mr Wendler relied upon Rogers v The Queen (1994) 181 CLR 251 to mount a submission that the Crown prosecutor in the third trial should not have been allowed to re-litigate the admissibility of the evidence. Greg James J allowed the evidence, and in this Court Mr Wendler pressed the same arguments he had mounted at the trial. (Ms Konz gave the evidence in a form slightly different from that which was anticipated at the time his Honour made his ruling, but nothing turns on this.) 36 Greg James J held that the evidence was not hearsay, from which it followed that there was no need to meet the requirement of notice in s67. I should set out the relevant part of his Honour's reasons, which commenced by reference to the general exclusion of hearsay evidence in s59 of the Act: Section 59 provides for a general bar on admissibility of evidence of a previous representation made by a person for the purpose of proving the existence of a fact the person intended to assert by the representation. Where, however, what is occurring is a verbal transaction sometimes referred to, as in The Queen v Ratten (1972) AC 378, as a "verbal act", the material is not hearsay at common law; nor is it, in my view, hearsay and caught by the hearsay rule under the Evidence Act… Here what we have is an invitation. That invitation was communicated through Mr Milenkovic. It is the Crown case that at least Mr Georgiou and Mr Culshaw were present in the premises at the time Mr Milenkovic left the group and returned asserting an invitation to a meeting extended by those persons to those Mr Milenkovic was addressing. The group, or at least the relevant members of the group, thereupon left where they were and went (sic). The evidence is tendered, as the Crown points out, to explain what was happening at that time, to explain their intent as to where they were going and to explain what caused them to go there. In my view, it is admissible as an invitation verbal act. In that circumstance, it is not barred as hearsay… 37 It is convenient to deal at this stage with the argument based upon Rogers v The Queen. We were supplied with a copy of Dowd J's reasons for rejecting the evidence in the first trial. Like Greg James J, his Honour concluded that the evidence was not hearsay, albeit by a somewhat different path of reasoning. However, after referring to s60 of the Evidence Act and to Lee v The Queen (1998) 195 CLR 594, he concluded that the evidence carried a risk of unfair prejudice which could not be cured by any limitation of the use of the evidence under s136 of the Act. As I understand it, his Honour's fear was that the jury would use it impermissibly as evidence that Georgiou had a hand in luring the three deceased to the basement. 38 It was on this point that their Honours parted company. Greg James J concluded his reasons for admitting the evidence in this way: I come back then to the argument asserting s137 should be applied and what is submitted to be the prejudicial effect. What is the prejudice in this case? The probative effect of the evidence is no different really to that which might tend to show that Mr Subramaniam had been threatened by the terrorists [a reference to Subramaniam v Public Prosecutor (Malaya) [1956] 1 WLR 965.] The content of the invitation is as much part of the transaction as the communication of the thing itself. It happens in this case that it is the communication of an oral transaction. It is submitted that if this material goes into evidence as an invitation to a meeting, the jury might use it to suggest that the persons named in the invitation were the persons that extended the invitation. To state the issue in this way is to make it clear that that is the probative value substantially of this evidence, not just that there was a meeting, but that it was a meeting called by those who were named in the statement through the emissary, Mr Milenkovic, who was, of course, the contact point from whoever extended the invitation to whoever received it. In those circumstances, I do not see that the jury could misuse the evidence in the sense of use it for a purpose other that that for which it is legitimately available. I am unable to see, therefore, that there is a danger of unfair prejudice to the defendant by admitting the evidence and allowing the jury to reason in that way since that is, as I see it, the probative value of the evidence. 39 In this Court, Mr Wendler acknowledged that Greg James J was not bound by the ruling of Dowd J because, the verdicts in the first trial having been set aside on appeal, that ruling was not final as between the Crown and the appellant: Rogers, per Deane and Gaudron JJ at 278 - 9; R v GK (2001) 53 NSWLR 317, per Sully J at 335 - 6. Mr Wendler relied upon the more flexible approach in Rogers of Mason CJ, based upon notions of abuse of process and public confidence in the administration of justice. That was not the approach of the other members of the Court. Nevertheless, Greg James J referred to the judgment of the Chief Justice in considering the reasons of Dowd J but, having concluded that Dowd J's decision was "plainly wrong", determined that public confidence in the administration of justice would not be served by adhering to it. His Honour referred to the review of relevant authority to be found in the judgment of Buddin J, sitting as a trial judge, in R v Pettersen (unrep, 6 June 2002) at [7] - [14]. It was clearly open to his Honour to examine the matter afresh, and no error has been shown in his doing so. 40 That said, the Crown prosecutor in this Court fairly expressed a misgiving about his Honour's reasoning in the last passage from the judgment quoted above. The jury might well have inferred from the words attributed to Milenkovic that Georgiou (and Culshaw) had personally asked him to convey a message that they wished to speak to the deceased. However, there was no direct evidence of this and the possibility remained that the message passed on by Milenkovic was, as it were, second hand. In that event, a problem could have arisen akin to that dealt with by the High Court in Lee v The Queen (supra). 41 Indeed, the Crown prosecutor at the trial conceded as much in her final address to the jury. She acknowledged that Ms Konz would not have been able to say that the message she heard conveyed by Milenkovic "in fact came from" Georgiou and that she would not know "the origins of that message…" This led his Honour in summing up to direct the jury as follows: As to that message, bear this in mind: it is conceded by the Crown that Angela Konz could not say that Kon Georgiou had actually sent the message. What is material, however, is the reference in the message to the meeting and the message being delivered inside the Blackmarket Café and Sasha Milenkovic, Mick Kulakowski and Rick De Stoop going away in to or toward the direction where the cellar door might be found. (By the "cellar door" his Honour meant the door which I have referred to as the door leading to the basement.) 42 There can be no doubt that the evidence was admissible to explain why the deceased left the bar and headed towards the basement and that, for that purpose, it was not hearsay. Any risk that the jury might have used it impermissibly against Georgiou was averted by the Crown prosecutor's concession and his Honour's direction. It seems to me that, in the light of the other evidence in the Crown case, it was open to the jury to infer that Georgiou had himself asked Milenkovic to pass a message to the deceased, and I understand this to be the effect of that last passage from his Honour's reasons for admitting the evidence. However, even if his Honour were in error in that passage, no miscarriage of justice could in fact have arisen and I would apply the proviso. This ground also fails.

Summing-up of Ms Konz's evidence 43 The second of the grounds of appeal relating to Georgiou only arises from an observation his Honour made towards the end of the summing-up, in response to a question by the jury about the drawing of inferences. In the course of dealing with that question, his Honour said this: Now there is one witness here who gives evidence of seeing facts which are said to be close to the time at which the accused are said to have committed the crime, that is Angela Konz, and that leads to the question of identification. You will recall that I have directed you in relation to that, because the accused Georgiou says he was outside. Angela Konz says he was inside and leaving from the direction of the cellar door in company with Mr Harrison. 44 Mr Wendler's complaint, which he made at the time, was that the last sentence in that passage does not fairly represent Ms Konz's evidence. He noted that this was an important part of the evidence against his client. Ms Konz had described hearing the shots and seeing "like a big influx of people …by the doorway to the basement." She went on: …the next thing I saw Kon and Harry [Harrison] run out of the basement door- not out of the basement door, sorry. I saw them run past the archway where I was sitting - I was standing at that point … 45 A person moving from the entrance area of the nightclub into the bar would pass through the archway to which Ms Konz referred. It is unnecessary to examine the evidence of the layout of the premises. It is sufficient to say that the direction in which Ms Konz described the appellants running was consistent with their having come from the basement. In the passage from the summing-up of which Mr Wendler complained his Honour was doing no more than expressing in a very summary form the effect of Ms Konz's evidence for the purpose of answering the jury's question. He had earlier dealt with her evidence in detail, including her evidence on this very point. Moreover, the jury requested and were supplied with a copy of the transcript of her evidence. There is no substance in this ground. 46 Accordingly, I would propose that the appeals be dismissed. **********

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