Georgiev v The Queen

[2004] HCATrans 210

[2004] HCATrans 210

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M175 of 2003

B e t w e e n -

MENDE GEORGIEV

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 18 JUNE 2004, AT 12.05 PM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:   May it please the Court, I appear with my learned friend, MS S.E. CURE, for the applicant.  (instructed by Theo Magazis & Associates)

MR W.H. MORGAN-PAYLER, QC:   May it please the Court, I appear with my learned friend, MS R.J. ORR, for the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

GLEESON CJ:   I notice that the judgment of the Victorian Court of Appeal was given on 13 March 2001. 

MR TEHAN:   Yes, your Honour.  We rely upon an affidavit which appears in the application book at ‑ ‑ ‑

GLEESON CJ:   You have an application for an extension of time?

MR TEHAN:   Yes, your Honour.

GLEESON CJ:   Is that opposed?

MR MORGAN-PAYLER:   Yes, your Honour.

MR TEHAN:   We rely upon the affidavit that appears in the application book, your Honour.  Your Honours, this application raises two aspects of a fundamental direction in a criminal trial where evidence is admitted for a limited purpose.  The direction to which we refer is that where evidence is admissible for one purpose, but is inadmissible for another purpose, the judge should direct the jury as to the specific limited use of the evidence and to caution against its misuse for any other, and, in particular, any improper purpose.  Trial judges generally comply with this principle, both at the time of the reception of the evidence and in directions in the charge.  This was not done in this case. 

Can we go to the second aspect of the case firstly, and it concerns evidence, devastating evidence, given by the mother of Joanne Guziak.  This was a case which was almost entirely dependent upon the jury accepting the evidence of Joanne Guziak that the applicant had made a confession to murder to her.  The mother’s evidence is referred to at application book page 50, if I could take the Court to that.  Her evidence was this, line 13: 

She described the conversation to you.  “You are not going to believe what happened.”  “What?”  “Michael shot someone in the city, near the city.  Came home like it was nothing, had a barbeque and something to eat and went to sleep like nothing had happened.”  She asked her what it was over.  She said, “It had something to do with Michael’s friend, Tom.  A couple of weeks previous someone had stabbed Tom in the hand.  That is why Michael shot this guy, something to do with drugs.”  She mentioned, said Mrs Guziak, about Joanne, she mentioned that she had to get rid of clothes, tracksuit or tracksuit pants.  She took them to Vinny’s bag or the Salvo’s box, not sure which one.  She mentioned to watch the news and the mother, Mrs Guziak, said she saw reference on the news that night about the murder. 

In cross‑examination, page 51, line 5: 

It was put to her in cross‑examination that in her statement she said, “I am not sure of the date, but somewhere around Easter 1995 Joanne telephoned me at home, I think it was on a Sunday in the morning some time.”  She was not too sure about the time, not really sure. 

The evidence of the daughter, Joanne, is referred to at application book page 49.  The way in which this evidence became admissible, of course, was to rebut a suggestion of recent invention, and that contention is set out in the charge at application book page 43.  Now, we accept, your Honours, the admissibility of this evidence on two bases.  Firstly, that it could rebut the suggestion of recent invention and therefore was admissible to restore the credit of Joanne Guziak, that she did not make up the confession from information from news broadcasts.  The second basis identified for admissibility by the majority in the Court of Appeal was that because of the time when Joanne relayed the confession to her mother, it was admissible as buttressing the reliability of the daughter’s account.  Sorry, that is what the ‑ ‑ ‑

GLEESON CJ:   Is the warning that you say you should have been given a warning not to use the disclosure of your client’s propensity of dealing drugs as a basis for concluding that he was likely to murder somebody?

MR TEHAN:   That is the first aspect of the case.  This aspect of the case deals with the evidence concerning the admissibility of the mother’s evidence.  We say there should have been a warning on that matter too, your Honour.  In particular, what we say is that the jury should have been told, “You can only use this evidence as rebutting the suggestion of recent invention and as buttressing the reliability of Joanne Guziak’s account, and, secondly, you cannot use the evidence as proof of the confession”.

GLEESON CJ:   Well, they were to be told, you say, that it buttressed the reliability of the evidence of Joanne.  What evidence of Joanne?

MR TEHAN:   The evidence that she did not come across this information through news broadcasts. 

GLEESON CJ:   I am just interested in the distinction the jury were to have made in their reasoning about this.

MR TEHAN:   The real danger is this.  This evidence was devastating.  The repetition of the confession to the mother of the main Crown witness ‑ ‑ ‑

GLEESON CJ:   Perhaps it was devastating and it was admissible.

MR TEHAN:   It was admissible, and no warning was given.  The majority in the Court of Appeal, wrongly, in our submission, found that it was admissible on another basis, that, in fact, it was admissible as an independent proof.

GLEESON CJ:   But the jury were to be told that they could regard this evidence as evidence buttressing the reliability of Joanne as a witness.

MR TEHAN:   Of her account, and the reason for that ‑ ‑ ‑

GLEESON CJ:   Of her account of what?

MR TEHAN:   Her account of the events, because of the timing when it was made. 

GLEESON CJ:   Yes.  Well, now, the distinction between – I acknowledge there is a distinction, but the distinction between buttressing the reliability of her account of what she saw and treating this as additional evidence about what she saw is not one that many jurors would find it easy to grasp.

MR TEHAN:   Exactly, your Honour, and that is why it should be given, the direction should be given.  That is what the minority judge’s opinion concerns, that because juries do not readily appreciate the distinction that lawyers appreciate, the warning should be given, “You cannot use this evidence as independent proof of the confession”.  The jury were not told that.  They should have been. 

GLEESON CJ:   Well, nobody asked them.  However, we have been through this recently.

MR TEHAN:   Yes, counsel did not disavow a direction.  The matter has been considered by the Tasmanian Court of Criminal Appeal in a case that we have provided to the Court, Attorney‑General for the State of Tasmania v Maynard [2003] TASSC 20. In that case, the Attorney‑General sought to set aside an acquittal for murder on the basis that the trial judge had wrongly excluded evidence that the respondent had confessed to one S, and that S had told a police officer of this confession. The Tasmanian Court of Criminal Appeal found that the evidence sought to be led from the police officer was, in the opinion of the Chief Justice at paragraph [10]:

Not . . . independent evidence of the truth of its contents. 

And in the opinion of Justice Underwood at paragraph [34]: 

It certainly boosts the credit of the witness, but I do not see it as providing any additional status to warrant its admission in the face of the exclusionary rule. 

Justice Evans agreed in the judgment of the Chief Justice, and the application for leave to appeal was refused.  In that case, the court held that a warning would have to be given.  At paragraph [10] the Chief Justice said:

The jury would need to have been told that unless, having regard to all the evidence, they were prepared to accept [S’s] evidence as reliable, they could not use the police officer’s evidence separately as proof that the confession was made. 

And at paragraph [19] Justice Underwood said:

Of course, care must be taken to ensure that the evidence is only used for the admissible purpose. 

Now, there is a conflict between State appellate courts on this matter.  The majority in Georgiev, the case at hand, take the view that this evidence was admissible as independent proof of the confession.  The court in the case of Maynard take the view that this evidence was not admissible.  Indeed, Maynard largely discusses Georgiev and, indeed, disagrees with the majority opinion in Georgiev.  We would submit that, on that basis alone, there are divergent opinions on the issue as to whether admissible hearsay evidence goes to independent proof as distinct from proof of a reliability of primary evidence.  That matter ought to give rise to a grant of special leave pursuant to section 35A of the Judiciary Act, and it is a matter of public importance, in our submission, particularly in the light of the adoption of model criminal Evidence Acts in various State jurisdictions. 

The other aspect of this point is that two cases were cited by the majority judges in Georgiev which support the proposition that a warning should be given.  At application book page 162, the majority judges referred to the case in this Court of Burns v The Queen (1975) 132 CLR 258. What the court did not refer to, if I could take the Court to Burns v The Queen at 264, point 5 on that page – one sees the quote relied upon in the first full paragraph by the majority commencing with the words “Where an accused”.  What the court did not quote was what appears beforehand:

On the other hand, if the jury had been told that they might consider that evidence on this issue, the trial judge should have warned them of the danger of giving it undue weight. 

Another case that the majority referred to is a decision of the Full Court of the Supreme Court of Victoria, R v Kerr (No 2) [1951] VLR 239. If I could take the Court to that case and, in particular, page 246 of the case. At point 7 on 246, the court quoted the statement commencing:

Whether the accused did make the statement alleged was the vital question in the case. 

What the court did not quote was this:

It is true that there was a danger of the jury making a wrong use of this evidence, but it was of serious weight and importance and, being relevant, should have been admitted, leaving the trial Judge to give the necessary warning to the jury as to how they were to use it, which he did with great clearness. 

Now, the evidence here was relevant and admissible, but no warning was given and, in our submission, it should have been.  Indeed, as we have just pointed out, the authorities relied upon by the majority, which opinion we contest is wrong, actually support the giving of the warning that we contend for. 

The other aspect of this application concerns the admissibility of the evidence of drug trafficking and a failure to direct upon evidence of the applicant’s bad character.  That evidence was admitted and showed that the applicant had continuously engaged in serious drug trafficking over five years before and in the weeks after the offence.  It was challenged by the defence.  It occupied a large amount of the trial.  If accepted, it demonstrated the applicant to be a person likely to receive a heavy sentence for trafficking and one to be despised and condemned for his behaviour. 

The evidence was admissible for the limited purpose of providing a motive for the applicant to commit the crime.  Emphasis was placed upon that aspect of motive, which made revenge the more likely, namely, that the applicant was a long‑term and serious drug dealer.  Revenge arose because the deceased had stabbed the applicant’s partner in drug dealing in what was referred to as a “rip off” robbery weeks before the offence. 

The terms of the applicant’s confession to Joanne Guziak were such that this evidence of motive made the confession the more reliable.  The case depended entirely upon the acceptance of the alleged confession.  However, the judge did not direct the jury upon this evidence.  He should have directed the jury, firstly, that the evidence was admitted solely to establish motive, and, secondly, that if the jury accepted the evidence, they could not use it as making it more likely that the applicant committed the offence. 

In our submission, the only safeguard for a fair chance of acquittal, where there is strong evidence of bad character, is that the jury be warned in the terms in which we submit they should have been.  Because the evidence of drug trafficking was integrally connected to the confession, it was all the more important, in our submission, to deliver the warning that we contend for. 

Your Honours, we appreciate that on the second point, the one we commenced with, if special leave be granted on that ground, the draft notice of appeal would need to be amended to include the following contention.  The Court of Appeal of the Supreme Court of Victoria erred in finding that the evidence of Kaye Guziak was admissible as independent evidence of an alleged confession made by the applicant to Joanne Guziak.  In our submission, special leave should be granted on both points.  May it please the Court.

GLEESON CJ:   We do not need to hear you, Mr Morgan‑Payler. 

We are of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave, and the application is dismissed. 

AT 12.24 PM THE MATTER WAS CONCLUDED