R v Harrison & Georgiou

M C Grogan - Crown COUNSEL : P Byrne SC & N Mikhaiel - Appellant Harrison J C Papayanni - Appellant Georgiou S E O'Connor - Crown SOLICITORS : Michael Croke & Co - Appellant Harrison Xenos Jordan - Appellant Georgiou CATCHWORDS : TRIAL - joint criminal enterprise - need for directions relating evidence to legal principles. D CASES CITED: M v The Queen (1994) 181 CLR 487; R v Zorad (1990) 19 NSWLR 91. DECISION : (1) Appeals allowed; (2) Convictions and sentences quashed; (3) Order there be new trials.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CCA 60483/99 CCA 60537/99 GILES JA SULLY J GREG JAMES J

Wednesday 21 November 2001 R v Bruce Malcolm HARRISON R v Konstantinos GEORGIOU

Judgment 1 GILES JA: The appellants Bruce Malcolm Harrison and Konstantinos Georgiou were tried before Dowd J and a jury on three counts of murder and one count of attempted murder. The trial occupied many weeks from 2 June 1999 to 22 August 1999. The appellants were found guilty on all counts. They were sentenced on the counts of murder to imprisonment for 33 years commencing on 3 February 1998 as to Mr Georgiou and 9 November 1997 as to Mr Harrison with non parole periods of 28 years, and on the count of attempted murder to imprisonment for 10 years commencing on the same dates. 2 The charges against the appellants related to the shooting of three men, Rick De Stoop, Sasha Milenkovic and Michael Kulakowski, and the wounding of a fourth man, Robin David, in the basement of the Blackmarket Café in Chippindale in Sydney. As can be seen from the length of the trial, the evidence put before the jury was extensive. It included that two guns were used in the shootings, and in such a way that it was open to the jury to find that two persons must have done the shooting in the basement. There was no direct evidence that the persons were the appellants, and the Crown case that they were the appellants was circumstantial. 3 The Crown opened to the jury in the following terms - "Now, it is not alleged by the Crown that each of the two accused shot each of the deceased. What is alleged by the Crown is the joint criminal enterprise of these two men in that shooting, which you may well think is an execution style shooting. His Honour will, no doubt, give you directions in relation to joint criminal enterprise and the way the Crown seeks to establish, by the evidence that it has presented by that time, how each of these accused was involved or engaged in a joint criminal enterprise."

4 The directions given in relation to joint criminal enterprise were prominent in the appellants' grounds of appeal, and were the subject of discrete argument. For the reasons which follow, in my opinion the directions were inadequate and the appeals against conviction must therefore be upheld. 5 The directions should be seen in the light of the Crown address. 6 The Crown addressed on 9 and 10 August 1999. The Crown Prosecutor almost immediately launched into the detail of the evidence. After some thirty pages the Crown said that if certain identification and circumstantial evidence were accepted and an alibi of one of the appellants was discounted, then "they both went there on a pre-arranged mission, and that's able to be ascertained from the evidence". In context, this meant going to the Blackmarket Café, and some evidence in support of the appellants going to the Blackmarket Café at the material time was then mentioned. 7 A little later in his address the Crown Prosecutor said - "So the Crown says from the timing, the two accused being there and having, the Crown says, in their possession the circumstantial evidence, it would establish to your satisfaction their possession of the pistols, the two of them, because the Crown says on the layout of what's down there, although a small room, although a small room, that it would be fatuous to suggest that one person was doing all the shooting , a two gun man, one against DeStoop, one into Milenkovic and used them both on - no, one, yes - used them one into DeStoop, one into Milenkovic, used them both on Kulakowski and then shot at Robin David. The Crown respectfully submits that you would be satisfied that there were two shooters in that basement at that time. So the Crown relies on the seven shots fired. So there's two shooters. The fact that two of the accused are able to be there, present, have the opportunity to do what is alleged against them, seen running from the premises a short time after, they arrive shortly before the shootings could have taken place and they leave shortly after the shootings could have taken place and did take place, and then there's the pursuit. So the Crown says they went there with a common design, a common purpose, a joint enterprise, to do what they did. And so far as the charge of attempted murder, the Crown has to establish firstly so far as the charge of murder is concerned, the Crown has to establish it was the act of the accused that caused the death of the deceased and it was done with either an intent to kill or cause grievous bodily harm. And the Crown says that you would be satisfied that each of these accused was in the basement at the time with a pistol. Anybody that used the pistol in the fashion that those 9mm pistols was used would have to have an intent to kill or cause grievous bodily harm, that's really serious bodily injury, and then there's the charge against them in relation to Mr Robin David. The Crown says that so far as that shot is concerned, anybody who shoots at anybody and hits them in the vicinity of the back of their neck has got to have an intention to kill. Not like trying to blow his kneecap off or his toe or anything like that. It's shooting at him to either kill him or cause him very serious bodily injury. And the Crown says that that is part of the enterprise. You go to commit the murders, you don't - it's an incident of the - or incidental to that arrangement that you are going to want to get away, and if anybody gets in your road or tries to intervene then you will get them out of the way. That's the Crown's case in relation to the joint enterprise of the accused shooting the man Robin David, and obviously only one shot at Robin David, but they were there carrying out a common design and that was something that must, the Crown says, you would be satisfied with that, the possibility of that incident arising, that is, somebody intervening, must have been considered by each of the accused and it's on that basis that the Crown mounts the attempted murder charge against the two accused." (Emhasis added)

8 This was not entirely clear. It seemed to proffer a case that, quite apart from going to the Blackmarket Café on a pre-arranged mission, both appellants were involved in the shootings of De Stoop, Milenkovic and Kulakowski, but it also referred to going to the Blackmarket Café with a common design and a joint enterprise to do what they did. As to the wounding of David, again there was reference to carrying out a common design, and the wounding appears to have been put to the jury as what has sometimes been referred to as an extended joint enterprise. 9 The summing-up began on 17 August 1999, a week after the Crown's address. At its commencement the jury was reminded that each charge was to be considered separately in respect of each of the appellants. In the course of that there was mention of a joint criminal enterprise, in the sentence "even if you establish the act of one accused is pursuant to a joint criminal enterprise, that fact, of itself, does not make from [sic: them] both guilty, and if you find one guilty only you must consider the case against each separately". There was no other explanation at this time of joint criminal enterprise. 10 After directions concerning the way the jury should approach its task the judge began at page 13 of the summing-up with "the process of reminding you of the evidence". His Honour went through the evidence of the various witnesses in the order in which they had given evidence, summarising in relation to each what had been said. That occupied until page 184 of the summing-up. 11 On 19 August 1999 his Honour turned to "review the arguments put by counsel in their addresses". He began with the Crown, and in relation to the way the Crown presented its case and in particular joint enterprise said only this - "The Crown presents the case to you, is a type of identification called recognition. And the circumstantial evidence available concerning pistols, the murder weapon, having been used a fortnight before, in possession of the accused Georgiou, ejection from the Porsche the fact that the both of them are included together, he says if you discount the alibi evidence of Georgiou, the Crown says they went there on a prearranged mission. They were picked up - Harrison was picked up by Georgiou and that in fact the Fischetti phone call he said 12.30 and the call recorded at 12.37 that they are in the car, that they are reaching the area, that you should rely on Maria Ahmed's evidence and the weapons about the guns going off to the back of her, and that Konz saw the two leaving the bar area and then of course Wraydeh's evidence and it is about five minutes after she saw Mick Kulakowski, Rick DeStoop and Sasha Milenkovic walk towards the cellar door and asked you to draw the infrence from the picture of the bodies and the Crown asks you to remember Sarah Willemen saying she saw a guy run down the stairs. She heard something and then this other man came across and started kicking the door. The Crown says they can't prove whether the door was open or not. The Crown relies on seven shots fired, says there are two shooters. The opportunity for the two of the accused to be there. They were seen running from the premises. They went there with a common design, a common purpose, a joint enterprise to do what they did. As far as the charge of attempted murder the Crown relies on the - the Crown says it has to establish it was the act of the accused, that is as part of their common purpose of either of them says if you if you would be satisfied that each of the accused was in the basement at the time with a pistol. Anyone who used that pistol in the fashion that the 9mm medium calibre pistols were sued would have to have an intent to kill or cause grievous bodily harm and that is the charge against Robin David and you only have to look at the evidence of where he was, shot in the head, and the circumstances as evidenced by the mark on the wall where he was shot in the wrist to know that he is an extraordinarily lucky man. The Crown says that the incident in relation to Robin David arose, something that was intervening and must have been considered by each of the accused and it is on that basis the Crown mounts the attempted murder charge against the two accused." (Emphasis added)

12 After dealing with the addresses by counsel for each of the appellants, at page 250 of the summing-up his Honour said he would take the jury through "some of the directions of law that you must take into account". A few pages later he said that he wished to direct the jury about joint criminal enterprise "because this is the contention of the Crown that both accused were involved in a joint criminal enterprise". 13 Over the following six pages of the summing-up his Honour gave general directions about the responsibility for the acts of each other of persons carrying out a joint criminal enterprise, including that the Crown must establish both the existence of the joint criminal enterprise and the participation in it by the accused and that a joint criminal enterprise exists where two or more persons reach an understanding amounting to an agreement between them that they will commit a crime. His Honour said that the understanding or arrangement need not be express, its existence may be inferred from all the circumstances, and it need not have been reached at any particular time before the crime is committed, and that the circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. His Honour moved on to refer, still in general terms, to the situation where a crime other than the agreed crime was committed by a party to the joint criminal enterprise. He then returned to deal with participation in a joint criminal enterprise either by committing the crime itself or by intentionally assisting or encouraging another party to the joint criminal enterprise to commit the crime. A number of examples were give, each quite disparate from the charges before the jury. 14 A little later his Honour came to directions "in relation to the crime of murder", in the course of which he said that the Crown must establish beyond a reasonable doubt, amongst other things, that in relation to the three charges of murder "it was the accused, as part of their joint enterprise or either of them, who did the act which caused the death of the deceased, Rick De Stoop, Sasha Milenkovic and Michael Kulakowski". 15 The summing-up ended soon thereafter. His Honour was asked by counsel for the appellant Mr Georgiou to direct the jury that, if the jury were not satisfied beyond a reasonable doubt that the Crown had established that there was an understanding or agreement between the appellants to kill or inflict grievous bodily harm, then they must acquit. It was said that this was "fundamental to the whole idea of a common purpose". The Crown agreed. There was then the further direction - "Now, the only other direction subject to the final directions that I want to give you is that you, when looking at the offence of murder, and looking at the offence of attempted murder, because the Crown relies on a joint criminal enterprise and that is a common purpose between the two. It is an essential ingredient because of that joint enterprise, in addition to the specific ingredient, if it were just an allegation of murder against one person, that you must find that common purpose and all the ingredients that go with common purpose, you must find that element beyond a reasonable doubt. You must find, in addition to the other matters that I directed you to attempted murder and murder, that it is beyond reasonable doubt that there was a joint criminal enterprise and that the acts were done pursuant to that or acts incidental to that."

16 The deficiencies in this, regrettably not overcome by more ample applications by counsel for the appellants or intervention by the Crown, were in my view quite stark. 17 The Crown put the matter to the jury at least in part, if not largely, on the basis that there was pre-concert between the appellants in that they went to the Blackmarket Café with the understanding or arrangement that the three victims would there be murdered, and that the wounding of the fourth victim came about as an incident of that joint enterprise for which they were also criminally responsible. No doubt this course was taken because it might have been that the evidence did not establish to the jury's satisfaction which of the appellants shot which of the victims or, possibly, that each of the appellants shot one or more of the victims. It was therefore important, as the request for a re-direction acknowledged, that the jury be satisfied as to the pre-concert and that the murders were the subject of the understanding or arrangement. But more was needed. The jury had weeks of evidence before it. General directions about joint criminal enterprise, at the end of some days of summation of the evidence, were inadequate. It was necessary that the jury be assisted as to how the notion of a joint criminal enterprise could apply on the evidence led before it, and on what evidence might be available on which it could find that there had been the necessary understanding or arrangement. It was also necessary that the jury be assisted as to how the notion of joint criminal enterprise was material to their finding of guilt or innocence in a way better than general directions above. 18 In R v Zorad (1990) 19 NSWLR 91 at 105 this Court said - "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resumé of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway and Omnibus Co Ltd [1909] VLR 497 at 522-523; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323; 57 WN (NSW) 20 at 24 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each witness before turning to the next witness and so on. The idea of a summing-up is to present for the jury the issues of fact which they have to determine." 19 What happened in this case, at best, was equivalent to the non-compliance to which the Court there referred. The evidence was gone through chronologically, and a general direction as to joint criminal enterprise was given. The relationship between the two, and the relationship between the evidence and the notion of joint criminal enterprise central to the Crown case as presented, were not dealt with. On the contrary, the directions as to joint criminal enterprise and the examples given may well have served to confuse the jury, leaving it to say that it was all very well to have an example concerning, for example, a bank robbery, but what was meant to be the joint criminal enterprise in its case, what was the evidence material to finding it , and in particular what did it mean for finding one of the appellants guilty but not the other or finding them both guilty. 20 The Crown submitted on appeal that the Crown case had been that the joint enterprise need only have commenced at or immediately prior to the shootings, and that it was not necessary to have evidence of a prior understanding or arrangement. It submitted that if the jury was satisfied that the appellants were in the basement together then they must have been acting to achieve the same purpose, namely to kill or inflict grievous bodily harm on the victims. Perhaps the case could have been put to the jury in that way, and there was at least a hint of it in the Crown's address. But that made it all the more important to explain the relevance and application of the notion of joint criminal enterprise. To the extent that the Crown case was left to the jury in the manner for which the Crown contended on appeal, there can only have been greater prospect of confusion in that the jury would not know what it was meant to do with that notion. 21 The deficiency in the summing-up is such that in my opinion the convictions can not stand, because the appellants did not have a trial according to law. It is unnecessary to deal with the other grounds of appeal. 22 Counsel for the appellant Mr Harrison properly acknowledged that he could not submit that there should be a verdict of acquittal, and that there should be a new trial. Counsel for the appellant Mr Georgiou, to whose position there were other relevant considerations, submitted that there should be a verdict of acquittal. 23 The charges are serious, and in these cases a new trial should be ordered unless the evidence was insufficient to support a conviction or any conviction would inevitably be set aside as unreasonable or unsupportable. The contrary was not submitted. On behalf of Mr Georgiou it was submitted that there was effectively no independent evidence of a prior understanding or arrangement, and that so far as one might have been found from the presence of the two appellants in the basement there was insufficient evidence to establish beyond reasonable doubt that Mr Georgiou was in the basement at the time of the shootings. The most direct evidence suggesting that Mr Georgiou was in the basement, that of Miss Konz, was said to be unreliable for a number of reasons, but it was said that even if it were accepted it could not lead beyond reasonable doubt to the conclusion that Mr Georgiou was in the basement. 24 I do not think that pays sufficient regard either to the evidence of Miss Konz or to the evidence as a whole. There was evidence of prior possession by Mr Georgiou of the two guns used in the shootings. There was sound evidence that Mr Harrison had been in the basement, particularly through DNA from one of the victims and a gunshot wound which Mr Harrison had incurred, and the evidence of Miss Konz had Mr Harrison and Mr Georgiou running from the direction of the door to the basement out of the Blackmarket Café with Mr Harrison holding a gun and apparently covering the back of Mr Giorgiou. There were descriptions of two men who then drove away at high speed in Mr Georgiou's car. One was undoubtedly Mr Harrison, because he was later found in the car. From the descriptions, it could be found that the other was Mr Georgiou. The two guns, recalling that they were guns shown to have been in the prior possession of Mr Georgiou, were thrown from the car as it drove away. There was evidence concerning telephone calls which assisted to place Mr Georgiou in the vicinity of the Blackmarket Café at the time of the shootings. There was evidence of flight by Mr Giorgiou capable of affording evidence of consciousness of guilt. 25 Approaching the matter on the basis outlined by the High Court in M v The Queen (1994) 181 CLR 487, in my view it was open for the jury to be satisfied beyond reasonable doubt that Mr Giorgiou was guilty. 26 I propose the following orders in each of the appeals - (1) Appeal allowed. (2) Conviction and sentence quashed. (3) Order that there be a new trial. 27 SULLY J: I entirely agree. 28 GREG JAMES J: As I do also.

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