R v Georgiou R v Harrison - [2005] NSWCCA 189

Reported Decision:
153 A Crim R 288

New South Wales

Court of Criminal Appeal

CITATION:
R v Georgiou R v Harrison [2005] NSWCCA 189

HEARING DATE(S): 2 February 2005

JUDGMENT DATE:

18 May 2005

JUDGMENT OF:
Spigelman CJ at 1; Sully J at 2; Hidden J at 3

DECISION:
Appeal dismissed

CATCHWORDS:
CRIMINAL LAW: Appeals against conviction - murder (3) - evidence of appellants at trial alleged to have been concocted by them jointly - whether evidence amounted to lies demonstrating consciousness of guilt - use which might be made of those lies against each appellant - admissibility of evidence of a statement by one of the deceased - effect of ruling upon that evidence by judge in previous trial

LEGISLATION CITED:

Evidence Act 1995

CASES CITED:
R v Harrison and Georgiou [2001] NSWCCA 464
Edwards v The Queen (1993) 178 CLR 193
Zoneff v The Queen (2000) 200 CLR 234
Rogers v The Queen (1994) 181 CLR 251
The Queen v Ratten (1972) AC 378
Lee v The Queen (1998) 195 CLR 594
Subramaniam v Public Prosecutor (Malaya) [1956] 1 WLR 965
R v GK (2001) 53 NSWLR 317
R v Pettersen (unrep, 6 June 2002)

PARTIES:
Regina (Crown)
Konstantinos Georgiou (appellant)
Regina (Crown)
Bruce Malcolm Harrison (appellant)

FILE NUMBER(S):
CCA 2004/1783; 2004/2184

COUNSEL:
D Arnott (Crown)
G Wendler (appellant Georgiou)
E Fullerton SC (appellant Harrison)

SOLICITORS:
S Kavanagh (Solicitor for Public Prosecutions)
Jordan Djundja Lawyers (appellant Georgiou)
Michael Croke and Co (appellant Harrison)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
70105/02
70217/02

LOWER COURT JUDICIAL OFFICER:
Greg James J

2004/1783
2004/2184

SPIGELMAN CJ
SULLY J
HIDDEN J
18 May 2005

REGINA v Konstantinos GEORGIOU

REGINA v Bruce Malcolm HARRISON

Judgment

1 SPIGELMAN CJ: I agree with Hidden J.

2 SULLY J: I agree with Hidden J.

3 HIDDEN J: Early in 2003 the appellants, Konstantinos Georgiou and Bruce Malcolm Harrison, were tried before Greg James J and a jury on three counts of murder and one count of attempted murder. The jury were directed to acquit them of the count of attempted murder but they were found guilty of the three counts of murder. Both of them were later sentenced to lengthy terms of imprisonment. They have appealed against conviction only.

Crown case

4 The three deceased, Michael Kulakowski, Sasha Milenkovic and Rick De Stoop, were all members of the “Bandidos” Motorcycle Club, as was a fourth man, Robin David, who was the subject of the charge of attempted murder. The appellants were members of the “Rebels” Motorcycle Club. It was alleged that they shot the three deceased in the basement of the Blackmarket Café, a twenty-four hour operating night club in Sydney, in the early afternoon of Sunday, 9 November 1997. The killings had the appearance of planned executions, although the motive for them was unclear.

5 There was no eyewitness to the shootings. However, there was a body of circumstantial evidence against the appellants, including ballistics and forensic biological evidence, most of which…

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.

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Details

Case: [2005] NSWCCA 189
Decision Date: 18 May 2005

CaseChat Overview and Summary

In the case of R v Georgiou and R v Harrison, the appellants were convicted of the murder of three people. The case was heard in the High Court of Australia, which was tasked with reviewing the admissibility of evidence in the trial. The appellants, Georgiou and Harrison, were convicted of the murder of three individuals, and the primary issue before the court was the admissibility of evidence obtained during the trial, which the appellants claimed was false and jointly concocted. The court had to determine whether the evidence amounted to lies demonstrating a consciousness of guilt, and if so, whether it could be used against each appellant.

The court considered whether the evidence presented at trial could be used as evidence of the appellants' guilt, given that it was alleged to be false and jointly concocted. The court held that evidence of a statement made by one of the deceased could be used against the appellants if it was shown that the statement was true and relevant to the case. However, the court also noted that the evidence could not be used to prove the guilt of one appellant based on the lies of the other. The court emphasised the importance of ensuring that the evidence presented in court was reliable and not the result of a joint effort to deceive the court.

The court ruled that the evidence of the statement made by one of the deceased was admissible, but it could not be used to prove the guilt of one appellant based on the lies of the other. The court also noted that the evidence of the statement was not the only evidence presented in the trial and that the appellants' convictions were based on a range of other evidence as well. The court held that the trial judge had not erred in his ruling on the admissibility of the evidence, and the convictions of the appellants were upheld. The court did not make any further orders in the case.

Orders