R v Faure & Goussis (No 2)

[2006] VSC 167

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1440 of 2005

THE QUEEN

v

KEITH GEORGE FAURE

EVANGELOS GOUSSIS

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Ruling No. 2

JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	3-5, 7, 10-14, 17-21, 24-29, 31 October, 2-3 November 2005
DATE OF RULING:	24 October 2005
DATE OF REASONS:	3 May 2006
CASE MAY BE CITED AS:	R v Faure & Goussis (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2006] VSC 167

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Criminal Law – Ruling – No case to answer submission rejected

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Parsons S.C. with Ms R. Carlin	Office of Public Prosecutions
For the Accused Faure	Mr J. Montgomery	Robert Stary & Associates
For the Accused Goussis	Mr R. van de Wiel Q.C. with Mr A. Halphen	Slades & Parsons

HIS HONOUR:

1. The accused Faure, together with the accused Goussis, was charged with the murder of Sean Vincent also known as Lewis Caine (“the deceased”).  At the conclusion of the prosecution case, Mr Montgomery, who appeared for the accused Faure, applied to me to rule that there was no case to answer by the accused Faure.  After hearing submissions, I stated that I would not grant the application, and that I would provide my reasons later.  These are the reasons.

1. I have applied what I understand to be the relevant principles as derived from Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410, Doney v The Queen (1990) 171 CLR 207, Knight v The Queen (1992) 175 CLR 495 and Case stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323. Put shortly, if the evidence is capable of supporting a verdict of guilty, the matter must be left to the jury. Further, in assessing the evidence, I am bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution.

1. At about 11 p.m. on the night of 8 May 2004, the body of  the deceased was found on the roadway in a dead end street in Brunswick.  He had been shot once in the face.  He carried no identity. Homicide Squad detectives quickly established that he was Lewis Caine, a man who had been convicted of murder, and who was known to have criminal associates.  The investigations of the detectives led to their  ascertaining that the deceased, shortly before his body had been found, had been drinking with both of the accused (after this “Faure” and “Goussis”) at a Carlton hotel.  In May 2004, all three men had close contacts in the camps of men with criminal backgrounds that were seen to be engaged in a series of retributive shootings.  All three men had reasons to be guarded as to where the loyalties of other contacts lay. 

1. The detectives interviewed both of the accused on 19 May 2004.  The accused Faure gave to the detectives an account that included that, after having had some friendly drinks with the deceased at the hotel, he had driven back to his home in Geelong and was there asleep at around 11 p.m.  What the accused Goussis told the detectives included: that he had been interested in selling to the deceased the 4WD in which Goussis had driven from Geelong to the hotel; that the deceased had, with the approval of Goussis, driven the 4WD from the hotel; that Goussis had agreed to the deceased dropping off Goussis at the home of the mother of Goussis at Fairfield; and, that that was the last that Goussis had seen of the deceased.

1. Faure and Goussis asked to be interviewed again by the detectives.  Those interviews took place on 21 May.  Both Faure and Goussis told the detective that there were parts of the accounts given on 19 May that were not accurate. What Faure went on to say included: that he and Goussis had left the hotel together; that their plan was to eat at a restaurant in a neighbouring suburb; that the three men were in two vehicles; that Faure was in a car following the 4WD in which Goussis and the deceased were seated; that the 4WD came to a stop; that at that time Faure felt sick and needed to vomit; that he heard gunfire; that he saw that the deceased had been shot; and, that he promptly left the scene.  What Goussis went on to say included: that the deceased had produced a gun; that he attempted without success to fire it at Goussis; that Goussis pulled out a gun which he had been carrying; and, that he shot the deceased.

1. The accounts given by the  two accused on 19 May were inconsistent with other independently verifiable evidence. Unlike the earlier accounts, the accounts given on 21 May were not shown by independent evidence to be lies, particularly as the 4WD, the gun used by Goussis and the gun which he claimed that the deceased had produced were not available to be tested.  In both interviews, Faure and Goussis talked of their close association with each other.

1. The evidence before the jury included considerable circumstantial evidence led as a basis for having inferences drawn that included: that the accused Faure was not to be believed as to the thrust of his account as to the events on the night of 8 May; that Faure and the deceased had been engaged in an altercation outside the hotel; that Faure had been involved in activity that caused him to change his clothes after leaving the hotel; that Faure had been in possession of ammunition identical to that taken from the body of the deceased; and, that Faure’s conduct after the shooting, including deliberate lies, reflected his consciousness of his guilt as a secondary party to the murder of the deceased.

1. Mr Montgomery put to me: that there was no direct evidence of joint enterprise, so the prosecution had to rely on his presence and consciousness of guilt; that there was no evidence that Faure was in the 4WD at the time of the shooting, or that he knew that a shooting was about to occur; that there was no evidence of any plan to kill the deceased; that there was no evidence of a falling out; that there was no evidence that Faure played any part in the disposal of the guns or the car; that at its highest the evidence of after events conduct could not support a conviction for murder; and, that a reasonable mind could not exclude all hypotheses consistent with innocence.

1. I was satisfied that, on the evidence led by the prosecution against Faure, taken at its highest, a reasonable mind could exclude all hypotheses consistent with innocence.  Given that, in assessing the evidence, I am bound to assume that the jury would draw inferences as to intermediate facts most favourable to the prosecution, I am satisfied that there was an ample basis for the drawing the inferences that Faure and Goussis were engaged in a joint enterprise and that each had the requisite intention for murder.

1. There was the evidence that Faure and Goussis chose to drive from Geelong to the hotel to meet up with  the deceased.  There was the evidence that Faure, not the deceased, extended the invitation to drink together.  There was the evidence that Goussis chose to take a gun to the meeting.    There was the evidence that the bullet that was shot was identical with bullets found at the home of Faure.  There was the substantial evidence of a very close association between Faure and Goussis.  Also to be taken into account was the implausibility of certain claims made to the detectives including:  why Faure and Goussis were meeting the deceased; that Lewis Caine was keen on buying the 4WD; and that another vehicle was driven to Melbourne as well as the 4WD; and, why the 4WD and the guns were not available.  The evidence of complicity was added to by the character of the interviews on 19 and 21 May.  The evidence of close association and the after events conduct evidence led against Faure provided a particularly solid basis for the drawing of appropriately adverse inferences as to secondary responsibility. 

1. Applying the relevant legal principles in the light of my assessment of the evidence, I was well satisfied that there was a case to answer.