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R v Georgiev

R v Georgiev

Case [2001] VSCA 18 13 March 2001

Criminal Liability

Causation

Admissibility of Evidence

Propensity Evidence

Confession

Consciousness of Guilt

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 335 of 1999

THE QUEEN
	v.
MENDE GEORGIEV

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JUDGES:	BROOKING, ORMISTON and PHILLIPS, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	29 and 30 November 2000
DATE OF JUDGMENT:	13 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 18

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CRIMINAL LAW – Murder – Killing to protect drug trafficking business and avenge attack on business partner – Evidence of drug trafficking as establishing motive – Confession essential to Crown case – Propensity evidence and motive – Permissible and impermissible use – Whether danger of impermissible use of evidence of drug trafficking – Behaviour and lies as showing consciousness of guilt – Evidence of confession – More cogent where facts admitted not otherwise known to recipient – Prompt narration of confession to third person – Admissible both to repel recent invention and to confirm recipient’s awareness of facts not in public domain – Adequacy of directions – Crown witness – Special warning not required.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. Mr R.T. Barry	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. Ms S. Cure	Cole & Magazis

BROOKING, J.A.
PHILLIPS, J.A.:

This is an application for leave to appeal against conviction of murder. The jury was empanelled on 8 November 1999 and, after some significant time was lost during the trial through debate over points of law in the absence of the jury, on 3 December the jury found the applicant guilty as charged. On 16 December, after hearing a plea in mitigation by counsel, the judge sentenced the applicant to 20 years’ imprisonment, fixing a non-parole period of 16 years. The applicant now seeks leave to appeal against conviction on a number of grounds.

The essential facts may be briefly stated. At about 9.15 p.m. on 11 March 1995, in Park Street St. Kilda near Fitzroy Street, a drug user and dealer, one Stuart Lance Pink was ambushed and shot three times with a .22 calibre gun. One of the bullets entered his brain and led to his death a few hours later. The Crown’s case against the applicant was that this was a revenge killing, carried out by him in response to a previous drug-related incident involving the deceased. Apparently, in the months preceding his death, the deceased had gained the reputation among the local drug community as “a rip”. He would either approach heroin users and offer to sell them heroin and then only give them a substitute, pocketing the money he gained to purchase heroin for himself; or he simply robbed other drug dealers, acting alone or in company with his associate, one Okanlar. The deceased would use a pocket knife to threaten his victims, stealing cash, jewellery and drugs. During one of these robberies, which was committed only a few days before his death, the deceased in company with Okanlar stabbed a drug dealer, one Tomislav Juricic (commonly called "Tom"), who was a friend and associate of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Georgiev

Details

AGLC: R v Georgiev [2001] VSCA 18
Case: [2001] VSCA 18
Decision Date: 13 March 2001

CaseChat Overview and Summary

The case of R v Georgiev was heard in the Supreme Court of Victoria. The accused, Georgiev, was charged with the murder of an individual, allegedly committed to protect his drug trafficking business and in retaliation for an attack on his business partner. The primary issue before the court was whether evidence of Georgiev’s drug trafficking could be used to establish motive for the murder and whether such evidence could be utilised in a manner that did not unfairly prejudice the defendant. Additionally, the court needed to assess the admissibility of a confession and the reliability of propensity evidence in the context of the case.

The court examined whether the evidence of drug trafficking could be used to establish a motive for the murder without unfairly prejudicing Georgiev. It was determined that such evidence could be permissible if it was shown to have a direct relevance to the motive for the crime. However, the court also needed to ensure that the evidence was not being used to suggest that Georgiev had a propensity to commit crimes, which would be impermissible. Furthermore, the court considered the admissibility of the confession, focusing on whether the prompt narration of the confession to a third party could both repel the suggestion of recent invention and confirm the recipient’s awareness of facts not in the public domain. The court also assessed the adequacy of the directions given to the jury regarding the use of such evidence.

In delivering its judgment, the court held that evidence of Georgiev’s drug trafficking was properly admitted to establish motive, provided it was not used to suggest a propensity to commit crimes. The court found that the confession was properly admitted as it was promptly narrated to a third party and served to confirm the recipient's awareness of facts not in the public domain. The court further determined that no special warning was required regarding the Crown witness. Consequently, the conviction was upheld, with the court satisfied that the jury had been adequately directed on the use of the evidence.

Orders