Citation: R v Georgiou; R v Harrison [2005] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 18 May 2005
Judge(s): Spigelman CJ, Sully J, Hidden J (Hidden J delivered the principal judgment)
Background
The two appellants were members of the Rebels Motorcycle Club. They were convicted at their third trial before Greg James J and a jury on three counts of murder arising from shootings at a Sydney nightclub in November 1997. Three members of the Bandidos Motorcycle Club were killed in what appeared to be planned executions in the basement of the venue.
There was no eyewitness to the shootings themselves. The Crown case relied on circumstantial evidence including ballistics, forensic biological material, and the evidence of a witness who said she saw the appellants hurriedly leave the club shortly after hearing gunshots, with one of them visibly holding a gun.
At their first trial in 1999, the appellants had run materially different and inconsistent defences. At the third trial, they presented a broadly consistent account in which a third man had committed the shootings and had thrust a weapon into one appellant's hand as he fled. The Crown alleged this revised, coordinated story was a concoction demonstrating consciousness of guilt.
Legal Issues
- Whether the trial judge misdirected the jury on the use to be made of lies said to have been told by the appellants, particularly lies said to demonstrate consciousness of guilt
- Whether, where two accused are alleged to have jointly concocted a false account, the lies direction (as to consciousness of guilt) could properly be applied against both of them
- Whether a statement made by one of the deceased shortly before the shootings was admissible as original evidence (not hearsay), or alternatively as a dying declaration or present sense impression
- Whether the trial judge's summary of a key witness's evidence in the summing-up accurately represented what that witness had said
Decision
The lies direction. The appellants argued the trial judge misdirected the jury on how to use their allegedly false evidence. The core contention was that where two accused are said to have concocted a joint false account, the lies direction ordinarily applicable to a single accused required modification. The Court examined whether the jury had been properly directed, in accordance with principles from Edwards v The Queen and Zoneff v The Queen, that a lie could only demonstrate consciousness of guilt if the jury was satisfied the lie was told deliberately, was motivated by consciousness of guilt rather than some other reason, and was not explicable by innocent causes. The Court found the trial judge had adequately directed the jury on these requirements and that no misdirection had occurred.
The joint concoction point. The appellants contended that because the lie in question was a joint one, special caution was required before its use could be extended as evidence against each individual appellant. The Court considered how lies allegedly told in concert could be used against the party who told them and, more carefully, against the co-accused who was said to have participated in fabricating the account. The Court was satisfied the judge's directions were sufficient and did not expose the appellants to an unfair or impermissible use of that material.
The deceased's statement. Georgiou argued the trial judge erred in admitting a statement attributed to one of the deceased, made before the shootings. The Court considered whether this was inadmissible hearsay or whether it was admissible as original evidence going to the effect on the listener rather than for the truth of its contents, drawing on principles from Ratten v The Queen, Lee v The Queen, and Subramaniam v Public Prosecutor. The Court held the statement was admissible. Even if any error had been made in the specific reasoning given for admission, the Court found no miscarriage of justice resulted and would have applied the proviso.
The summing-up of witness evidence. Georgiou also challenged a passage near the end of the summing-up in which the trial judge briefly characterised the evidence of the eyewitness. The Court found the impugned passage was a compressed summary made in the context of answering a jury question about the drawing of inferences. The judge had addressed the witness's evidence in full detail earlier in the summing-up, and the jury had also been provided with a transcript of that evidence. No error was established.
Orders Made
- Both appeals dismissed.
Key Takeaways
- In dismissing both appeals, the Court of Criminal Appeal confirmed that a lies direction based on consciousness of guilt requires the jury to be satisfied the lie was deliberate, motivated by consciousness of guilt rather than another reason, and not explicable by innocent causes, consistent with Edwards v The Queen and Zoneff v The Queen.
- Where two accused are alleged to have jointly concocted false evidence, a lies direction may still be applied, provided the jury is properly directed on its permissible use against each individual appellant.
- A statement made by a deceased person before their death may be admissible as original evidence (not hearsay) where its relevance lies in the fact it was made and its effect on the listener, rather than in establishing the truth of its contents.
- No misdirection arises from a trial judge's compressed summary of witness evidence during a summing-up where the full evidence was addressed in detail earlier and the jury had access to the transcript.
- Applying the proviso: even where some doubt existed about a specific aspect of an evidentiary ruling, the Court was prepared to find no miscarriage of justice had resulted from any such error.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW)
Cases
- R v Harrison and Georgiou [2001] NSWCCA 464
- Edwards v The Queen (1993) 178 CLR 193
- Zoneff v The Queen (2000) 200 CLR 234
- Rogers v The Queen (1994) 181 CLR 251
- The Queen v Ratten [1972] AC 378
- Lee v The Queen (1998) 195 CLR 594
- Subramaniam v Public Prosecutor (Malaya) [1956] 1 WLR 965
- R v GK (2001) 53 NSWLR 317
- R v Pettersen (unreported, 6 June 2002)