Georgescu v The Queen

[1991] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M25 of 1991

B e t w e e n -

CHRISTINEL TEDDY GEORGESCU

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

DAWSON J

Georges cu 1 15/11/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 NOVEMBER 1991, AT 2.34 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON:  May it please the Court, I appear in

this matter on behalf of the applicant,

Mr Georgescu. (instructed by Haines & Polites)

MR W.B. WOINARSKI, QC: If the Court pleases, I appear with

my learned friend, MR N.R. BIRD, on behalf of the

respondent. (instructed by the Director of Public

Prosecutions (Victoria))

MASON CJ: Yes, Mr Holdenson.

MR HOLDENSON:  The issue in this matter depends upon the

answer to the question posed by His Honour

Mr Justice Barton in the case of Ridley v Whipp,

(1916) 22 CLR 381.

MASON CJ:  What was that question?

MR HOLDENSON:  I will come to it, Your Honour. Perhaps the

bundle of authorities might be handed up. At

page 389, that decision being the first one in the

bundle handed to the Court, His Honour

Mr Justice Barton posed the question as to what

happens or what occurs when a man tries to lift

himself up off the ground by his bootstraps.	The
question, Your Honours - - -

MASON CJ: If that is the question for the Court's

resolution I cannot see us granting special leave.

MR HOLDENSON:  That may well be the result, but as to the

manner in which the question arises I will now

come. As is set out in the application book at

page 7, where is set out the arguments to be

advanced on behalf of the applicant, the first

submission is that:

In the instant matter, the learned trial judge

directed the jury that if they determined that the Prosecution witness Paul Gerard Alcock was

an "accomplice", then it would be dangerous

evidence of the said witness. for them to convict upon the uncorroborated

And as is set out in the judgment of the court

below, by reason of it being common ground at the

trial, the jury must have so treated that

particular witness. As a result, as is indicated

in the second submission in that outline of

argument:

The learned trial judge then indicated to the jury various pieces of evidentiary material, each of which was capable -

in his direction -

Georges cu 2 15/11/91

of amounting to corroboration of the said

witness -

Alcock. Of those six items, and if I could just

briefly indicate those six to the Court, the first

was the use of a pager - that is a paging device;

the second was arranged meetings between Alcock and

the applicant, Mr Georgescu; the third related to the entries in a diary; the fourth related to the events in the hallway outside a certain room in the

Seaview Hotel; the fifth related to a set of scales and the sixth related to some out of court false denials or lies.

In so far as this application is concerned, as

is implicit within the third submission in the

outline, the application is based upon four of

those six, namely the pager, the meetings, the
diary and the scales. Taking firstly the diary and
the scales, there was, of course, evidence at the

trial relating to the source of each. Police

officers gave evidence to the effect that in

executing searches they had seized each of these

two items.

BRENNAN J:  What is the question of principle which you are asking us to consider?

MR HOLDENSON:  The nature of that evidence which is capable of amounting to corroboration. The very question

which, in my submission - and this is a submission

yet to come - was not answered in the recent

decision of Doney v Reg, a decision of this Court

in 1990, because the court did not have to answer

it - - -

MASON CJ: But what is the question?

MR HOLDENSON:  Whether or not evidence to be so capable must

be independent of that witness who requires

corroborating, that is must that evidence come from

an independent source or a source different from

that witness who requires corroboration; and

secondly, whether or not evidence which is

consistent with both cases before the court,

prosecution and defence, is capable of constituting

corroboration in circumstances where that evidence

is more than merely consistent with each of the two

cases but actually forms a part of the defence put

by the accused person - - -

DAWSON J: That just depends how the jury view the evidence.

If it is capable of amounting to corroboration and they think that it is, that is the end of it.

MR HOLDENSON: There certainly are authorities to that

effect, sir. However - - -

Georgescu 3 15/11/91

DAWSON J:  It is common sense, is it not? You take your

scales, for instance. They may corroborate, they

may not. They may be scales for weighing drugs,

they may be scales for weighing other things,

but -

MR HOLDENSON: That is correct. However, the manner in

which the evidence was led concerning the scales is

not as clear as common sense may well be. In so

far as the scales were concerned - and keeping in

mind that there was absolutely no connection

between the place where the scales were found, or

at least no real connection, the scales being found

in another part of the hotel occupied by different

persons - - -

DAWSON J: That does not matter. If the jury reaches the

conclusion that the scales were connected with
drugs, then they may be corroborative. If they
reach the conclusion that they were not, then it is

not corroboration.

MR HOLDENSON:  If I could just explain the manner in which

the evidence concerning the scales went in, when

Alcock was giving evidence in the trial, having

indicated that the scales were used in order to

weigh drugs by Georgescu and another person who was

not before the court, having indicated that scales

were used he was then, while in the witness box,

given the scales and asked to express an opinion

concerning them. And at that time he expressed the
opinion that the scales in his hand were similar to

those used by Mr Georgescu. So it was not a

situation where the witness was asked to give

evidence concerning scales and then describe them,

and then putting the scales to him. So it was a

situation, in my submission, where the witness was

able to pull himself up by his own bootstraps, to

use the expression of His Honour Mr Justice Barton,

in the sense that the scales to be an item of

corroboration, or to be capable of constituting

Mr Alcock. corroboration, went in with that explanation of That was also the way in which the diary went

in. In fact, by way of perhaps interest, the

scales were in fact tendered through prosecution

witness Alcock, rather than through a subsequent

police witness, one of the police witnesses who

found the item. In so far as the diary was

concerned, Alcock gave evidence concerning the

diary, "Yes, there was a diary in which figures

were recorded." The diary was then handed to him,

"Yes, that's the diary.", and he was then asked to

open various pages and, having done so, he

explained that which was on those pages. It was

those matters which the learned trial judge

Georgescu 4 15/11/91

directed the jury were capable of constituting

corroboration of that witness.

DAWSON J:  The diary and the scales went in in the form of

real evidence?

MR HOLDENSON:  They were in evidence, yes. They went into

evidence. Now, in so far as the pager and the

arranged meetings were concerned, the evidence of

Alcock was that if he wanted drugs he would use the

pager in order to convey the existence of his need

or desire for those drugs in order that a meeting

might be arranged at which Alcock could swap goods

which he had stolen for those drugs. Now, in so

far as this aspect of Alcock's evidence is

concerned, the defence of Mr Georgescu was very

simple:  "Yes, I met with Alcock and at those

meetings Alcock gave me stolen goods which I would

subsequently sell. And also at those meetings I

would settle with him. I would give him the money which I owed him from the previous sales of stolen

goods."

Now, the submission in respect of each of those four items is that not one of those four

items can be corroborative of Alcock's story

because in respect of each of those four, by reason

in particular in so far as the scales and the diary

was concerned, by reason of the manner in which the

evidence came about, the way in which the

prosecutor led the evidence, everything depends for

its evidentiary value on the story or the evidence

of Mr Alcock. So the jury was asked to accept

Alcock's veracity as to those matters in an effort

to confirm Alcock's evidence.

The submission is a very simple one. It is

submitted that it is trite law. In so far as every

authority is concerned, because there are no

authorities inconsistent with that, for evidence to

be capable of constituting corroboration, it must

be independent of or - - -

DAWSON J: Now, stop there. There was a set of scales found

on the premises.

MR HOLDENSON:  Yes.

DAWSON J: There was a diary in existence which went into

evidence.

MR HOLDENSON:  Yes.

DAWSON J: There was a meeting between these two people or a

series of meetings.

MR HOLDENSON:  Yes.

Georges cu HOLDENSON 15/11/91

DAWSON J: Now, the Crown sought to put one interpretation on

them, aided by Alcock's evidence; the defence

sought to put another interpretation on them.

MR HOLDENSON:  Yes.

DAWSON J: There was independent evidence. Its usefulness

depended upon the complexion which you placed upon

it.

MR HOLDENSON:  Yes. Now, in that regard, in so far as the

scales and the pager were concerned, it is

submitted that it is precisely that situation which

was perceived by His Honour Mr Justice Barton
where, at page 389 of that report, at about point 5

on the page, there appears the following passage in the large paragraph on the centre of that page, and

I quote:

I cannot accept the suggestion that she can

corroborate herself by her own evidence. Such

a contention reminds one of the familiar

simile of a man trying to lift himself off the

ground by his bootstraps. If one part of a

person's evidence is relied on for

corroboration of the remainder, the answer

instantly arises that the part relied on is as

much under the original reservation as the

part sought to be corroborated.

Now, had the evidence been led at the trial in a

different way in so far as the scales and the diary

are concerned, I may not be able to make the

submission.

BRENNAN J:	What do you mean "led in a different way"?
MR HOLDENSON:	Had, for example, in so far as the scales

were concerned, the witness Alcock been called upon

to give evidence concerning the weighing of drugs

and then asked to describe the scales, and if he

would describe the scales as, for example, "Twelve

inches long with green and white stripes thereon
with the'brand name Acme printed thereon", and then

subsequently the police, through a police witness

led evidence to the effect that in searching the

premises he found a set of scales which were of the

requisite colour with the requisite label on and

the requisite size, then that would be, in my

submission, clear independent evidence capable of

constituting corroboration of the witness Alcock.

BRENNAN J:  Did the policeman give evidence that that set of

scales was found?

Georges cu 6 HOLDENSON 15/11/91

MR HOLDENSON:  The police gave evidence that the set of

scales which had been tendered through Alcock, yes,

had been found at the premises.

BRENNAN J:  Did Alcock give evidence that those were the

scales?

MR HOLDENSON:	Yes, he gave evidence of similarity. His answer was of similarity but, in giving the
evidence, it was led from him in the sense of,
"Yes, there are scales" and then the scales were handed to him and "Yes, the scales that were used", he said, "were similar to those which you have now handed to me."
BRENNAN J:	You mean, if the policeman had been called first

before Mr Alcock got in the witness box, you would

not have had a point?

MR HOLDENSON:  It is not a question of calling the witness

first; it is a question of, in my submission, as to

the manner in which the evidence is led.	Had the
evidence been led - - -

BRENNAN J:  What is the subject-matter of the evidence in

the two hypothetical situations we have been

discussing; namely, what happened in this case and

what, on your concession, would have amounted to

corroborative evidence?

MR HOLDENSON:  By reason - I am not certain that I

understand Your Honour's question, but - - -

BRENNAN J: There are two points, are there not? There is

the evidence that Alcock gives with respect to

scales, in your hypothetical case that are

12 inches long and have green stripes on them.	In
the instant case, he gives evidence that,	"Those

scales I am looking at now are similar to the

scales that I have been speaking about." In your

hypothetical case, the police officer gives
evidence that,	"On searching the premises I found

these scales and, lo and behold, they are 12 inches

long and they have got green stripes." In this

case the police officer gives evidence, "I searched

the premises and, lo and behold, here are the

scales." What is the difference?

MR HOLDENSON:  Because in that which existed at the trial

and the real case, that is not the hypothetical

case, the evidence concerning the scales as to

whether or not they were the scales used, was not

independent evidence.

DAWSON J: That is not right, is it? The existence of the

scales did not depend upon Alcock's evidence; they

existed. That is independent evidence.

Georgescu	15/11/91
MR HOLDENSON: In my submission, that is not -
DAWSON J: Similarly, the diary existed - - -
MR HOLDENSON:	Yes, it existed.

DAWSON J: - - -but it existed, and similarly the meeting

took place or meetings.

MR HOLDENSON:  Yes, there is no doubt that the meetings took

place and, in fact, that was not merely conceded by the applicant, Georgescu, at the trial but that was

in fact part of his defence. However, in so far as

his defence was concerned, there was -

DAWSON J:  And for instance, take the meetings, Alcock said

that the meetings were for a sinister purpose.

MR HOLDENSON: That is correct.

DAWSON J: That merely goes to show the nature of the

meetings.	The jury could accept that or not accept
it.

MR HOLDENSON: That is correct. However, in that

regard - - -

DAWSON J: But in so far as he said there were meetings and

the meetings had a sinister purpose, his evidence

was corroborated by the fact that meetings did

indeed take place which were capable of satisfying

his description.

MR HOLDENSON:  Yes, sir, that is correct. However, that is

simply not the way in which the learned trial judge

directed the jury and that is why, had the jury

been directed in a different manner, I would not be

able to complain -

DAWSON J: Perhaps you take us to the directions.

MR HOLDENSON:  I am not certain as to the court's numbering,

but it is certainly the application book which

contains the transcript of the charge. In so far

as the meetings are concerned - perhaps if I start

with the weighing out - the items are set out on

pages 2414, that is transcript page 2414 where, at

about point 7 on the page, there is the expression,

and I quote:

Firstly, the use of the pager may be used as

evidence capable of corroborating Alcock

providing you are satisfied that the message

relates to an incident of trafficking and

tends to implicate an accused by its use. to Schioparlan and very few messages are

Georges cu 15/11/91

linked to occasions where there is evidence of

the accused and Alcock meeting. However, if

you are satisfied that during the time, that

Schioparlan was overseas and you are satisfied

that Mr Georgescu had custody of the pager,
then the use of the pager would be able to be

used by you as evidence capable of

corroborating Alcock as against Georgescu.

DAWSON J:  How was the pager - what was the evidence with regard to the pager?

MR HOLDENSON: There was evidence, firstly from police

officers who had effectively - - -

DAWSON J: Heard it being used?

MR HOLDENSON:  They knew it was being used, yes, because

they had effectively an intercept on the pager and

they -

DAWSON J: They gave evidence the pager was used, and there

is no doubt the pager was used?

MR HOLDENSON:  No doubt there was a pager used and there was

no doubt there was a pager used by Schioparlan and

Alcock and there was evidence to the effect upon

which the jury could find that the pager was also

used by Georgescu. The passage goes on:

That is the messages, of course, that Alcock

was delivering and any response to those

messages by Georgescu. Similarly if you were

satisfied that there were occasions when an

accused did meet with Alcock as a direct

result of that pager message, then you would

be able to use that evidence as being evidence

capable of corroborating Alcock against the

accused.

The second item is then set out which relates to	the meetings, although there is a restriction on
the meetings and that is of course rather than mere
chance meetings in the street. That is set out at
the head of page 2416.

In so far as the diary is concerned, on

page 2416 at about point 7 on the page:

There are various entries in the diary relating to the lists of goods, amounts of

money and, of course, Paul Alcock's phone

number, the car registration numbers -

which were also contained within the diaries.	In
so far as that matter is concerned, there was an

explanation by the accused as to those matters in

Georges cu 9 HOLDENSON 15/11/91

his diary and that evidence concerned or directly

related to a portion of his defence. In that

regard, reliance was placed upon the decision of

the Reg v Nanette, (1982) VR 81, where His Honour

Mr Justice Mcinerney as he then was, at page 86 in

that report at about line 13 on the page decided,

and I quote:

It is not sufficient that the corroborating

evidence should be consistent with the

"suspect evidence" if it is equally consistent

with the applicant's version. Thus, the

evidence of the seminal stains and the
detection of spermatazoa on the vaginal swabs

and smears and vulval smears and on the rectal

swabs and smears was equally consistent with

both the prosecutrix's version and the

applicant's version of the incidents of the

night.

In that case it was a sexual offence case and it

was part of the defence that there had been sexual

intercourse but there had been consent by the

prosecutrix. And it was held that evidence which

was consistent with both versions, and in this case

all of those items - I have just referred to three,

and there are the other three - they all formed

part of the defence case and equally consistent

with both versions.

DAWSON J: But why? What if the jury rejects the version of

the accused?

MR HOLDENSON:  The jury were not so directed in this case.

Now, there is authority to that effect. In circumstances where there is an issue as to

consistency or neutrality, then it is open for a

trial judge, in fact incumbent upon the trial judge

to direct the jury in that regard. There was no

such direction in this case.

Perhaps the matter is put a little more

clearly in another of the cases set out on the

outline of argument - - -

BRENNAN J:  Mr Holdenson, you are not seeking to challenge

any of the established principles, are you?

MR HOLDENSON:  No, I am not seeking to challenge the

established principle from an independent source.

There is only one principle I am seeking to challenge and that is there are a number of

authorities - there is a conflict in the
authorities in this regard - to the effect that

evidence which is consistent with both the

prosecution case and the case of the accused is

capable of constituting evidence capable of

Georgescu 10 15/11/91

corroboration and there are other authorities to an

opposite effect.

In other words, there is a conflict in the

authorities and those authorities in which there is

a conflict are conveniently set out in the decision
of the New South Wales Court of Criminal Appeal of

Kalajzich v Orrock, that being another case set out

on the outline of argument and that certainly being
one in the bundle of authorities handed up. I seek

to challenge, therefore, that which is resolved in

New South Wales and Queensland, and that is the

only point I wish to challenge

MASON CJ: But you also have to challenge the decision of

this Court in Chidiac v Reg, do you not?

MR HOLDENSON:  In my submission, there is no aspect of that

decision which I have to challenge. If Your Honour

could assist me in that regard. I am familiar with

the content of that case.

MASON CJ: Yes, well in Chidiac the Court was concerned with

a meeting that took place in Honiara. The Crown

case, which relied heavily on the evidence of a

witness Oti, was that a meeting took place in

Honiari for an unlawful purpose. The defence case

was there was a meeting in Honiari but it was for

an innocent purpose. The contention was that

because the taking place of the meeting was

consistent with the defence case and with the Crown
case, it could not constitute corroboration of the

evidence of Oti, who was an accomplice. Now, as I understand it, the entire Court took the view that

the evidence was capable of being corroborative

evidence.

Now, if you look at page 209 in my judgment in

the second column in the central paragraph, a

little more than half-way down the page, it is

explicitly stated that that is the position.

Again, in Justice Dawson's judgment at page 216, in

the first column, that view is expressed.

Justice Toohey agrees with Justice Dawson's

reasons. Justice Gaudron agreed with my reasons

and those of Justice Dawson. Justice McHugh, at

page 219, made this comment about it - he seems to have taken the view, in the second column, that it

was capable of constituting corroborating evidence

but he described it as "weak" corroborating

evidence. Now, is not all that against your

proposition?

MR HOLDENSON:  On one view, without making any concessions,

it would be against me in so far as the pager and

the meetings were concerned as items capable of

constituting corroboration. In so far as the other

Georgescu 11 15/11/91

two items are concerned, by reason of the manner in

which those items went into evidence through

Alcock, albeit there was subsequent evidence which could have been given first - there was no magic in

the order - albeit there was subsequent evidence

concerning the source of each of those items, the

only way the jury were permitted to use them as precedent to items of that nature being capable of
items capable of constituting corroboration was by
reason of the explanation which went with them.

constituting items of corroboration would have been

in accordance with what Your Honour Justice Brennan

called my hypothetical situation in so far as the

colours were concerned and the name on the object.

That is the issue in the case and by reason of the manner in which those items went into evidence,

I do not want to repeat myself, it became a

situation as described by His Honour

Mr Justice Barton.

DAWSON J:  I do not understand. Mr Justice Barton was

talking about a witness corroborating herself by

her own evidence. What you do have here is

individual items of evidence which are not in

dispute, which by their very existence do tend to

support the story the witness told. It may be that

you could take another view of them and if you did

you would not consider them to be corroboration.

MR HOLDENSON: 

The alternative submission on behalf of the

applicant would be, and is, that the jury were not
permitted - or it was not indicated to them that
they could take an alternative view.

DAWSON J: They were told that these items may amount to

corroboration. They were not directed that they

had to - - -

MR HOLDENSON: That is correct.
DAWSON J:	And the judge said, "It is for you to say whether

you accept it and it is for you to say whether you

regard it as being corroborative in effect".	He
says that at page 2414.	He could not make it
clearer.

MR HOLDENSON:  Yes, sir, but it was not indicated how it

would be or how they could test for themselves

whether or not those items were capable of

constituting corroboration in the requisite sense.

DAWSON J:  You have to attribute some intelligence to a

jury. If they in fact thought that what the

accused was saying was true, then of course the

Georgescu 12 15/11/91

evidence would not be corroborative. It was

explained.

MR HOLDENSON:  I understand that.

DAWSON J: There it was, and it was something to be taken

into account. It was evidence which existed, which

tended to support the story which the witness gave.

BRENNAN J:  Mr Holdenson, I can understand how you are

concerned by the ruling that was given but I fail

to see, at the moment, that there is any question

of general principle as distinct from its

application that justifies the grant of special

leave. It does not really advance the matter much

to say, "These are the relevant principles and in

this case they have not been applied." You have to

show that the case has got some legs to raise a new

principle somewhere.

MR HOLDENSON:  I understand that, Your Honour. If the Court

were to turn to the recent judgment of this Court
in Doney v Reg, (1990) 171 CLR 207, where at

page 211 at the head of the page, the third line on

that page, there is the expression "The essence of

corroborative evidence" and if I can just leave
that expression as it is for the moment, and then
at the very foot of the page there is, in the
second-last line on the page, "involvement in the

events as related by the accomplice".

Now, one of the questions of general

principle, it is submitted - and this is consistent

with the affidavit in support of this application -

is "What is the ambit or range of matters covered

by each of those expressions?" Neither of those

expressions is defined or explained in any way in

that judgment - and it did not have to be, by

reason of the facts which were before the Court.
In my submission, this case does raise the

questions of, firstly, the nature of evidence which

is capable of amounting to corroboration or the

ambit of that which is or can be corroborative
evidence or the events which must be related by the

accomplice.

There is, in my submission, no decisions of

this Court which assist in that regard -

DAWSON J:  If you take what is said at the bottom of

page 211 in Doney:

It is not necessary that corroborative

evidence, standing alone, should establish any
proposition beyond reasonable doubt. In the

case of an accomplice's evidence, it is

sufficient if it strengthens that evidence by

Georges cu 13 15/11/91

confirming or tending to confirm the accused's
involvement in the events as related by the
accomplice.

Now, just take one of the things here. The accomplice's story was that the accused was

involved in drug dealing. Now, the police find a

set of scales and there are the scales that they

found. Now, that tends to support his story which

was not only that he was involved in drug dealing

but used, in the course of his drug dealing,

scales. Now, there may be an innocent explanation

for the scales which the jury accepts, in which case it disappears as corroboration. But there

they are; an independent fact which is consistent

with his accomplice's story and tends to support it

and implicate the accused.

MR HOLDENSON:	Your Honour, when one examines the evidence concerning the source of those scales, the evidence
is to the effect that the scales were found in
another room on another floor of the hotel. There was absolutely no connection - - -
DAWSON J:	It may be weak corroboration, but it is still

corroboration.

MR HOLDENSON:  And there was no evidence to the effect that

that room in which those items - or these scales

were found was in any way connected with either

Schioparlan or Mr Georgescu. Now, I heard what

Your Honour said before, but it was not indicated

to the jury by the learned trial judge that they

might constitute only a weak item of corroboration.

They went in as corroboration and it was not put to

the jury that they might in any way exercise any

discretion, to use the word - - -

DAWSON J:  It was; it was said to the jury that it was a

matter for them whether they thought these things

amounted to corroboration.

MR HOLDENSON:  No, sir, that was not clearly, in my

submission, put to the jury. The only other - to

finally answer in one sentence the question put by

Your Honour Justice Brennan to me in so far as the

question which arises in this case, the second
question is as set out in paragraph 10

placitum (ii) of the affidavit in support and that

is that:

whether or not evidence, in order to be

capable of being left to the jury as

corroboration must not presuppose the truth of

the evidence of the person whose testimony is

sought to be corroborated;

Georgescu 14 15/11/91

and that issue there clearly relates to those two

items, the scales and the diary.

They are the issues which, it is submitted on

behalf of the applicant, arise in this application

and as is set out in paragraph 11 of that affidavit

in support on page 4 of the first application book,

there is simply no authoritative statement of this

Court, or for that matter the House of Lords

either, which determines those issues and in so far

as the other matters are concerned, there is

conflict and, in any event, in the instant matter,

it is submitted there is a miscarriage of justice.

Unless Your Honours have any further

questions, I cannot take the matter any further.

MASON CJ:  Thank you, Mr Holdenson. The Court need not

trouble you, Mr Woinarski.

The Court is not persuaded that this case

raises any question of general principle which

would warrant the grant of special leave to appeal.

The application is therefore refused.

AT 3.07 PM THE MATTER WAS ADJOURNED SINE DIE

Georges cu 15 15/11/91