REGINA v GEORGIOU

1 SPIGELMAN CJ: The applicant/accused is charged upon a joint indictment for three counts of murder and one count of attempted murder. He seeks leave to appeal from a decision of Sperling J declining to order that the applicant/accused have a separate trial from his co-accused. The decision is an interlocutory judgment. Accordingly, the applicant comes before the Court seeking leave pursuant to s 5F of the Criminal Appeal Act 1912. 2 Save in minor respects, the factual findings by Sperling J are not in issue. Accordingly, I incorporate herein the facts as set out in paragraphs 2-8 of his Honour's judgment of 5 May 1999. "The three deceased and Mr David were all members of the Bandido Outlaw Motor Cycle Club, Mr Kulakowski being the Club's National President, and Mr Milenkovic being the Club's Sergeant at Arms. Mr Georgiou was a current member of the Rebels Outlaw Motor Cycle Club. Mr Harrison was an associate of Mr Georgiou and a former member of that Club. The Crown case against the co-accused is as follows. Mr Georgiou and Mr Harrison acted in concert from beginning to end. They travelled to the Black Market Cafe in Mr Georgiou's Porsche motor vehicle. The deceased were killed by gun shot wounds and Mr David was wounded by gun shot. The shooting took place in a basement of the Cafe which is not open to the public. A Mr Culshaw, an off-duty doorman employed at the Cafe and a current member of the Rebels Outlaw Motor Cycle Club, obtained the keys to the basement from the bar attendant. The deceased, Mr Milenkovic, left the group of people he was with for a short time and, on returning, said to the deceased, Mr Kulakowski, that Mr Culshaw and Mr Georgiou wanted to have a meeting with them. The three deceased then left the people they were with and went towards the door to the basement. About five minutes later gunshots were heard from the basement. Mr Georgiou was seen running from the basement door, followed by Mr Harrison who was waving a gun. The two men ran from the Cafe and were seen running along the street. Mr Harrison was observed to have his right hand down the front of his trousers inside a long black overcoat as if concealing something. They ran to Mr Georgiou's Porsche. Mr Georgiou entered the driver's side and Mr Harrison the passenger's side, and the vehicle was driven off. Police pursued the vehicle at high speed and then at a safer distance. In Crown Street, a metal object was seen to be thrown from the passenger window of the vehicle. It was recovered by the police and found to be a Smith & Wesson pistol. A Baretta pistol was also located nearby. Soon after, the Porsche was located in Hutchinson Lane, Surry Hills. Mr Harrison was seen walking away from the vehicle. He was apprehended, broke free, and was recaptured and handcuffed. Mr Georgiou was not present. A Mr Spanakakis (who is charged with being an accessory after the fact) and others obtained a ticket for Mr Georgiou to travel by sea to Japan on the vessel 'Arafura'. On 3 February 1998 Mr Georgiou was apprehended on the vessel, carrying a stolen passport, a driver's licence in a false name and a large amount of cash. He was arrested. The forensic evidence against Mr Harrison includes the following. Mr Harrison was found to have been shot in the left wrist. A pair of gloves found on the front seat of the Porsche were stained with blood which could not be excluded from having originated from him. DNA recovered from a .25 spent bullet, found on the floor of the basement near the deceased, Mr De Stoop, was very likely to be from Mr Harrison. DNA recovered from Mr Harrison's footwear was very likely that of the deceased Mr De Stoop. Forensic evidence against Mr Georgiou includes the following. The Smith & Wesson pistol was purchased in 1990 and later given to Mr Georgiou. Photographs were found on Mr Georgiou's premises depicting him and others holding pistols identical with the Smith & Wesson and Baretta pistols recovered in Crown Street. Premises depicted in those photographs were searched and a number of bullets and cartridges fired from the Smith & Wesson and Baretta pistols were recovered. Four cartridge cases recovered from the murder scene were fired from the Smith & Wesson pistol. Two damaged bullets recovered from the murder scene were fired from the same pistol. A bullet fragment was discharged from that pistol. A damaged copper bullet jacket and a damaged lead bullet core, discharged from the Smith & Wesson pistol, were recovered from the body of the deceased, Mr Kulakowski. On 10 November 1997, the accused, Mr Harrison, participated in an electronically recorded interview with the police, attended by his barrister. Relevantly, Mr Harrison said that he was driven to the Cafe by Mr Georgiou in the Porsche, which was parked in a street near the Cafe at a point specified in a diagram drawn by Mr Harrison and annexed to the record of the interview. Mr Harrison went on to give the following account of events. When he arrived at the Cafe, Mr Harrison had been drinking and was drunk. Mr Harrison went to the toilets and then to the cloakroom area. He started taking off his jacket when his hand was hit violently. Mr Georgiou had been out of sight for only two minutes. Mr Harrison went out of the Club. He noticed that his hand was injured and saw blood coming from it. Mr Georgiou grabbed him by the elbow. Mr Georgiou walked him to the Porsche. Mr Harrison assumed that Mr Georgiou was going to take him to hospital. They got in the car, Mr Georgiou driving. Mr Georgiou was driving fast. He said they had to get Mr Harrison to hospital. Mr Harrison denied throwing anything out of the vehicle and said he did not recall Mr Georgiou doing so. He said he could not recall breaking free when he was apprehended by the police. At a joint trial, Mr Harrison will require the Crown to tender the electronic record of the police interview and the sketch plan showing where the Porsche was allegedly parked. Mr Georgiou has served a notice of alibi. The witness statements provided support his case that he was not at the Cafe at the relevant time. " 3 The factors relevant to an application of this kind are set out in Webb and Hay v The Queen (1993-94) 181 CLR 41, where Toohey J at 88-89 (with whom Mason CJ and McHugh J agreed) said: "King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other'. What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Regina v Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others. There are, of course, dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused." 4 Although in this case there is no suggestion that each accused would try to cast the blame on the other, the other aspects of policy and principle referred to in that extract apply in the instant case. 5 In his judgment his Honour Sperling J set out the relevant principles for determining an application for a separate trial by reference to the decisions of this Court in Middis (NSWCCA 27 March 1991); Baartman (NSWCCA 6 October 1994) and Fernando 1999 NSWCCA 66 (see pars 199-212). Counsel for the applicant accepted his Honour's statement of the law when he quoted Hunt J from Middis stating the relevant principles to be: "(1) Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and (2) Where the evidence against those other Accused contains material highly prejudicial to the Applicant although not admissible against him; and (3) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the Applicant. The Applicant must show that positive injustice would be caused to him in a joint trial." 6 The applicant contends that these principles were satisfied in this case. His Honour stated that he was not persuaded that "the evidence against the Applicant is significant weaker than that of his co-accused". He did accept that the tender of the electronic record of the co-accused's police interview would be prejudicial to the applicant. The reason for that was that it referred to the applicant's presence at the scene of the murders, whereas the applicant's defence is one of alibi, based on an assertion that he was at home in bed with his girlfriend at the relevant time. 7 Sperling J concluded: "The potential prejudice is capable of being specified in a straight-forward way. A clear and unequivocal instruction to the jury could be formulated not to use the Harrison interview as evidence that Mr Georgiou was present at the Cafe or as evidence of anything done by him. I do not assume that juries invariably implement instructions of that kind ... The confidence which one would have in such an instruction being followed will vary from case to case. Where, as in the present case, the potential prejudice is readily identifiable and can be made the subject of an appropriate instruction in a straight-forward way, there is reason to expect that a jury would understand and follow the instruction. In such a case, there is no serious risk that the case against the applicant would be immeasurably stronger by reason of the prejudicial material." 8 The submissions made to this Court assert that "Sperling J erred in law" by holding that "he was not persuaded" that the evidence against the applicant was significantly weaker than that of his co-accused. I detect no legal error. It was also submitted "there was a real risk" that the applicant's defence of alibi "would be significantly diminished" by the co-accused's record of interview. Again, his Honour Sperling J was aware of the question of prejudice and indicated that in the circumstances a direction to the jury would be sufficient. I agree with his Honour. 9 The only factual error alleged in the judgment of Sperling J is a statement by his Honour that "the two men ran from the Cafe and were seen running along the street". Counsel for the applicant submitted that no one identified either of the two men who were running in the street, although two men were seen to be running. 10 The passage from Sperling J referred to in written submissions by counsel for the applicant is in the middle of the following passage: "Mr Georgiou was seen running from the basement door, followed by Mr Harrison who was waving a gun. The two men ran from the Cafe and were seen running along the street. Mr Harrison was observed to have his right hand down the front of his trousers inside a long black overcoat as if concealing something. They ran to Mr Georgiou's Porsche. Mr Georgiou entered the driver's side and Mr Harrison the passenger side and the vehicle was driven off." 11 Accordingly, whilst the reference to "were seen running along the street" is challenged, no challenge occurs to the other statements by his Honour as to Mr Georgiou's presence on that occasion. 12 I will return to the evidence in that regard in a moment. 13 The submissions on behalf of the applicant were directed to establishing an "error of law" in the finding by his Honour that the evidence against the applicant was not such that his Honour was prepared to classify it as "significantly weaker than that against his co-accused". Attention was directed to the identification of the co-accused leaving the Cafe holding a handgun; a forensic connection to the murders from DNA sampling; connection of the co-accused to the getaway car; the wound to the wrist of the co-accused and other such evidence. This was contrasted with what was said to be weaker evidence in the case of the applicant. 14 As is inevitably the case in matters of this character, the evidence connecting the applicant in the alleged joint enterprise is not the same as that connecting his co-accused. As his Honour summarised the evidence against the applicant, it included the following: by photographic and other evidence it was known the applicant had a direct connection to the firearms which, the inference is open, had been thrown from the getaway car. They were the murder weapons. Furthermore, the getaway car was his vehicle. The applicant was apprehended trying to leave Australia carrying a forged passport, a driver's licence in a false name and a large amount of cash. 15 It appears that the applicant and the co-accused were subject to the same identification evidence as they allegedly left the Cafe. The identification evidence, we were told by counsel for the accused, referred to an area adjacent to the entry point of the basement in which the murders occurred. There is a witness who identifies each of the accused. Other evidence linking the applicant to the scene of the crime includes a police constable who gave a description of the driver of the getaway car and several months later identified the applicant as that driver, albeit the identification was made in qualified terms. 16 The evidence of the applicant differs from that against his co-accused. The DNA sampling connects the co-accused to the basement area and that has no equivalent in the case of the applicant. However, there is evidence linking the applicant and the co-accused to a point adjacent to the entry point to the basement area. Furthermore, there is evidence of the connection between the applicant and the murder weapons and also the getaway car. In some cases, the identification evidence is of the same quality, in other cases it differs. 17 In my opinion, the evidence against the applicant does not constitute a "significantly weaker" body of evidence and it was open to Sperling J to so hold. 18 Sperling J took into account the prejudice that would arise from the tender of the co-accused's police interview. It was open to his Honour to find that the relevant prejudice was "readily identifiable" and capable of being the subject of an appropriate instruction to the jury which would minimise the prejudice. Not only was it open to his Honour to so hold, in my opinion his Honour reached the correct conclusion. As matters unfold at the trial, the question of prejudice may be seen in a different light. That is a matter for the trial judge. 19 It has been authoritatively determined that an order for separate trials is an interlocutory order within the terms of s 5F. (See Saunders (1994) 72 A Crim R 327). As the Court pointed out in that case, it is a feature of an interlocutory order of the character under appeal that it may be varied by the trial judge if material emerges during the course of a joint trial which makes it "unjust to proceed other than by ordering a separate trial" (353). 20 There are well-known limitations on a court of appeal interfering with the exercise of a discretion to direct separate trials, not least because the position in such matters may change as the course of the trial unfolds. (See eg Guldur (1986) 8 NSWLR 12 esp at 15; Verma (1987) 30 ACrimR 441 esp 446. 21 In my opinion, Sperling J reached the correct conclusion on the material before him. Leave to appeal should be refused. 22 GREG JAMES J: I agree and have nothing to add. 23 SMART AJ: I also agree. 24 SPIGELMAN CJ: The order of the Court is leave refused.