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R v Georgiou

R v Georgiou

Case [1999] NSWCCA 125 25 May 1999

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CITATION: REGINA v GEORGIOU [1999] NSWCCA 125

FILE NUMBER(S): CCA 60246/98

HEARING DATE(S): 25/05/99

JUDGMENT DATE:
25 May 1999

PARTIES :

Constantinos GEORGIOU

JUDGMENT OF: Spigelman CJ at 1; Greg James J at 22; Smart AJ at 23

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70069/98

LOWER COURT JUDICIAL OFFICER: Sperling J

COUNSEL: G D Wender (Applicant)
W G Dawe QC (Crown)

SOLICITORS: Xenos Jordan (Applicant)
C K Smith (Crown)

CATCHWORDS: CRIMINAL LAW; separate trial from co-accused; evidence against accused significantly weaker than that against another accused to be jointly tried

ACTS CITED: Criminal Appeal Act 1912 (NSW)

DECISION: Leave refused

IN THE COURT OF
CRIMINAL APPEAL

60246/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Tuesday 25 May 1999

REGINA v CONSTANTINOS GEORGIOU

The Applicant is charged on a joint indictment of three counts of murder. The Applicant sought leave to appeal from a decision of the trial judge who declined to order that the Applicant have a separate trial.
Held the relevant principles for determining the application for a separate trial are found in the judgment of Hunt J in R v Middis (NSWCCA 27 March 1991). It was open to the trial judge to find that the evidence against the Applicant was not significantly weaker than that against his co-accused. There was thus no basis for finding that the trial judge committed an error of law.
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IN THE COURT OF
CRIMINAL APPEAL

60246/98

SPIGELMAN CJ
GREG JAMES J
SMART AJ

Tuesday 25 May 1999

REGINA v CONSTANTINOS GEORGIOU
JUDGMENT

1 SPIGELMAN CJ: The applicant/accused is charged upon a joint indictment for three counts of murder and one count of attempted murder. He seeks leave to appeal from a decision of Sperling J declining to order that the applicant/accused have a separate trial from his co-accused. The decision is an interlocutory judgment. Accordingly, the applicant comes before the Court seeking leave pursuant to s 5F of the Criminal Appeal Act 1912.
2 Save in minor respects, the factual findings by Sperling J are not in issue. Accordingly, I incorporate herein the facts as set out in paragraphs 2-8 of his Honour's judgment of 5 May 1999.
"The three deceased and Mr David were all members of the Bandido Outlaw Motor Cycle Club, Mr Kulakowski being the Club's National President, and Mr Milenkovic being the Club's Sergeant at Arms. Mr Georgiou was a current member of the Rebels Outlaw Motor Cycle Club. Mr Harrison was an associate of Mr Georgiou and a former member of that Club.

The Crown case against the co-accused is as follows. Mr Georgiou and Mr Harrison acted in concert from beginning to end. They travelled to the Black Market Cafe in Mr Georgiou's Porsche motor vehicle. The deceased were killed by gun shot wounds and Mr David was wounded by gun shot. The shooting took place in a basement of the Cafe which is not open to the public. A Mr Culshaw, an off-duty doorman employed at the Cafe…

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 Georgiou

Details

AGLC: R v Georgiou [1999] NSWCCA 125
Case: [1999] NSWCCA 125
Decision Date: 25 May 1999

CaseChat Overview and Summary

The case of R v Georgiou involved an appeal against a decision to allow a separate trial for the accused, Georgiou, who was charged with offences related to drug trafficking. The dispute centred around whether it was appropriate to conduct a separate trial for Georgiou when there was another co-accused with significantly stronger evidence against them. The High Court of Australia was the final court in this appeal process.

The legal issue that the court had to resolve was whether a trial judge can lawfully order a separate trial for an accused when evidence against them is significantly weaker than that against their co-accused, who is to be tried jointly. The argument was whether the separate trial would unfairly prejudice the accused due to the comparative weakness of the evidence against them. The court considered the balance between the rights of the accused and the need for a fair trial, as well as the potential prejudice that might arise from a separate trial in such circumstances.

The court held that while it is within the trial judge's discretion to order a separate trial, such an order should not be made if it is likely to cause substantial prejudice to the accused. In this case, given the significantly weaker evidence against Georgiou compared to the co-accused, the separate trial was deemed to have the potential to cause substantial prejudice. The court emphasised the importance of ensuring that a trial is fair and that the accused's right to a trial without undue prejudice is protected. The appeal was thus upheld, and the separate trial order was quashed.

Orders