Citation: Regina v C Georgiou (Judgment No 1) [1999] NSWSC 406
Court: Supreme Court of New South Wales, Criminal Division
Date: 5 May 1999
Judge(s): Sperling J
Background
Two accused, Constantine Georgiou and Bruce Malcolm Harrison, were jointly charged with the murders of three men and the attempted murder of a fourth at a Sydney café on 9 November 1997. The Crown alleged the two men acted in concert throughout, arriving together and fleeing together in Georgiou's vehicle after the shootings. Georgiou was a member of the Rebels Outlaw Motor Cycle Club; the victims were members of the Bandido Outlaw Motor Cycle Club.
The Crown's case against Georgiou relied substantially on forensic evidence linking weapons recovered by police to him, including photographs found at his premises and ballistic evidence connecting cartridge cases at the murder scene to a pistol associated with him. Georgiou served a notice of alibi, maintaining he was not at the café at the relevant time.
Harrison had participated in a recorded police interview in which he described being driven to the café by Georgiou and later being walked to the Porsche by Georgiou after sustaining a wrist injury. Georgiou's application for a separate trial turned significantly on the potential prejudice arising from the anticipated tender of that recorded interview at a joint trial.
Legal Issues
- Whether the evidence against Georgiou was significantly weaker than and different to the evidence against Harrison, such that a joint trial would cause positive injustice to Georgiou.
- Whether Harrison's recorded police interview contained material highly prejudicial to Georgiou that could not be adequately addressed by a judicial direction to the jury.
- Whether there was a real risk that the Crown's case against Georgiou would be made immeasurably stronger by the admission of that prejudicial material at a joint trial.
Decision
Sperling J applied the three-part test drawn from Hunt J's judgment in Middis, as approved by the Court of Criminal Appeal in Baartman and Fernando. That test requires an applicant to show that the evidence against them is significantly weaker than and different to that against the co-accused, that the co-accused's evidence contains material highly prejudicial to the applicant though inadmissible against them, and that there is a real risk the weaker case will be made immeasurably stronger by that prejudice. The applicant must demonstrate positive injustice would result from a joint trial.
His Honour was not persuaded that the evidence against Georgiou was significantly weaker than that against Harrison. The Crown's case against both accused was substantially the same, proceeding on the basis of a common enterprise throughout, and much of the evidence overlapped.
While Sperling J accepted that Harrison's recorded interview had the potential to cast a shadow over Georgiou's alibi, he found the prejudice was limited in scope. Critically, Harrison did not implicate Georgiou in the actual commission of the offences; he simply described not knowing what Georgiou was doing when out of his sight. The prejudice was readily identifiable and could be addressed by a clear, unequivocal direction to the jury not to use the Harrison interview as evidence of Georgiou's presence or conduct.
His Honour declined to assume that juries invariably fail to follow such directions. Where potential prejudice is straightforwardly identifiable and capable of precise articulation in a jury direction, there is sufficient reason to expect the jury would understand and follow the instruction. Accordingly, the court was not satisfied that Georgiou would suffer positive injustice at a joint trial, and the application was refused.
Orders Made
- The application for a separate trial was dismissed.
Key Takeaways
- The three-part test from Middis, as approved by the Court of Criminal Appeal in Baartman and Fernando, governs applications for separate trials: the applicant must establish significantly weaker and different evidence against them, highly prejudicial material from the co-accused's case, and a real risk the weaker case will be made immeasurably stronger, resulting in positive injustice.
- Where the Crown alleges a common enterprise, the evidence against co-accused will often be substantially the same, making it more difficult to establish the "significantly weaker and different" limb of the Middis test.
- Prejudice arising from a co-accused's out-of-court statement does not automatically warrant a separate trial, particularly where the co-accused does not use that statement to implicate the applicant in the commission of the offence.
- The confidence a court places in a jury direction addressing prejudice will vary by case. Where the prejudice is clearly identifiable and can be addressed in a precise, unequivocal direction, the court may reasonably expect the jury to follow it, reducing the risk that the case against the applicant becomes immeasurably stronger.
- Refusing the application, Sperling J confirmed that the interests of justice generally favour joint trials where the alleged offences share substantially the same factual basis and the accused are said to have acted in concert.
Legislation and Cases Referenced
Cases:
- Middis (Hunt J, 27 March 1991, unreported)
- Baartman (6 October 1994, unreported)
- Fernando [1999] NSWCCA 66
Legislation: No specific legislation was cited in the judgment.