R v Guariglia

[1999] VSC 182

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Do not Send for Reporting
Not Restricted

No. 1471 of 1998

THE QUEEN

v.

GEOFFREY GUARIGLIA

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	21 MAY 1999
MEDIA NEUTRAL CITATION:	[1999] VSC 182

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CATCHWORDS:                  Criminal Law - Whether there is a case to answer on the charge of murder.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. B. Kayser with Mr. M. Sargent	Peter Wood Solicitor for Public Prosecutions
For the Accused	Mr. T. Forrest

HIS HONOUR:

1. Geoffrey Guariglia is charged with murder.  The case against him is that he acted in concert with or alternatively aided and abetted Ronald Skelly and Steven Wenitong in the killing of Peter Tran.  The Crown case is based in part on admissions which it alleges the accused made to his wife Fleur Le Couteur.  It is also based in part on statements made by the accused to the police.  Finally, there is forensic evidence that Tran died of a gunshot wound to the head.  If the forensic evidence is accepted, it is highly likely that two bullets were fired into the head of the deceased.

1. It is submitted by Mr Forrest, counsel for the accused, that his client has no case to answer to the charge of murder.  Taken at its highest, Mr Forrest submits, the evidence at the close of the Crown case is not capable of supporting a verdict of guilty of that charge.  In other words, the evidence put at its highest for the Crown is incapable of supporting the conclusion that the accused was party to an arrangement or understanding to commit an offence, still less the crime of murder.

1. Mr Forrest first puts to one side the statements made by the accused to the police.  They are, he contends, exculpatory; and the Crown does not contend otherwise.  According to this version of the relevant events, the accused met Skelly and Wenitong on the morning of 11 February 1997, the day on which Tran died.  They later met up with Tran.  All four were subsequently driven by the accused to the bush east of Warburton.  The last portion of the journey was undertaken while the accused was under compulsion of a gun held by Wenitong.  After the accused, at Wenitong's command, stopped the car, the other three got out and walked into the bush.  The accused heard a shot.  Skelly and Wenitong returned to the car.  Tran did not.  The accused, who had never left the car, drove back to Melbourne with the other two.

1. A somewhat different version of events was, according to the Crown, given by the accused to Ms Le Couteur.  She gave evidence that the accused told her that no gun was used on the journey into the bush.  In other words, he, the accused, was not under compulsion when he drove the vehicle containing Tran and his two killers to the scene of the crime.  Not only that, but, as the evidence was given by Ms Le Couteur, the accused told her that that morning when Skelly and Wenitong came to the accused's house, they told him that they wanted to kill Tran and to do so later that day.  He thought they were joking.

1. According to the version which Ms Le Couteur says she was given by the accused: 

"What happened was there was no gun pulled on him by Steve and as the story goes, Ron and Steve got out of the car and went with Peter.  Steve apparently came back and asked for another bullet and Geoffrey went with him this time.  Geoffrey saw Peter lying on the ground and another bullet was put into Peter by the three.  Ron, Steve and Geoffrey put leaves over the body and branches and they all went back to the car".

1. Mr Forrest submits that even this version of events is exculpatory of the accused.  If accepted, he submits, the Crown case nevertheless falls short of establishing either that the accused acted in concert with Skelly and Wenitong, or that the accused aided and abetted the commission of the crime by the other two.  Mr Forrest relies on the proposition that the accused must be taken to have thought that Skelly and Wenitong were not serious when they spoke earlier that day of the plans to kill Tran, and that there is no evidence that his state of mind in this regard was changed by anything that happened thereafter up until the accused heard the firing of the shot which, on any account of the events of that day, resulted in Tran receiving a bullet wound to the head.

1. This being so, Mr Forrest submits, no jury could properly find the accused guilty of either acting in concert or aiding and abetting.  A person who believes a plan is a joke is not a participant in that plan.  Nor is innocent and ignorant assistance in the execution of that plan, as by driving the parties to the hills east of Warburton, aiding and abetting.  It is true that if the Le Couteur version is accepted, the accused, when he left the car after the first and before the second bullet was fired, might be thought to have joined in an arrangement to shoot Tran a second time, but by then the probabilities are that the fatal shot had already been fired.  At the very least, any jury would necessarily have a reasonable doubt about whether by the time the accused left the car Tran was either dead or dying; or, to put the matter the other way, no jury could conclude beyond reasonable doubt that the first shot did not cause Tran's death.  In those circumstances, no jury could accept beyond reasonable doubt that by the time the accused joined the arrangement or sought to aid and abet the crime, the mission was yet to be accomplished.

1. It is true that the Le Couteur account contains no admission that the accused ever knew before the first shot was fired that what he thought was a joke was nothing of the kind.  On the other hand, the jury are entitled to bring to their task their knowledge of life, and their knowledge of the way things generally work; and people do not generally go on a drive with others without there being any plan behind the journey.  Even if the plan is to go for a drive simply for the sake of going for a drive, it will almost invariably contain as a constituent element some concept of the direction in which the car is to be driven.  So if the accused were not under compulsion as he drove the car away from Woori Yallock, it is highly likely, or at least it would be open to the jury to conclude, that he had some idea of a destination and a purpose.  The jury would be entitled to look with some scepticism at the proposition that he drove off merely as a result of Skelly saying: "Let's go", and perhaps telling him, the accused, to turn left into the Warburton Highway.  Any such scepticism would be increased by a story which would have the accused innocently sitting in a car while Skelly and Wenitong walked into the bush with the man who, earlier that day, they had jokingly said they wanted to kill.  If the accused was innocent of their true intentions, he must have been startled, if not put in terrible fear, by the sound of the first shot.  He had, by that shot and the events which preceded it, become closely associated, if only by physical proximity, to what in all likelihood was murder.  If he was not a party to the arrangements which put him in this position, was it not possible that he would be the next victim, and would not this be especially so when the man with the gun returned for another bullet? How would someone in the position of the accused, who knew nothing of the real intention to kill Tran, react to those circumstances? Not, the jury might think, by leaving the car and of his own free will accompanying Wenitong, who is armed with a loaded revolver, into the bush.  On the other hand, if sometime before he had come to a realisation that the joke was something else, and had joined in the now to his knowledge serious plan, what the accused did on the Le Couteur version is entirely explicable.  For these reasons, it seems to me that, if the jury accept that the accused said to Ms Le Couteur what she says he said, and that those admissions were true, then the jury would be entitled to conclude that the accused was either a party to an arrangement to murder Tran or aided and abetted Skelly and Wenitong in doing so.

1. For these reasons, the no case submission is dismissed. 

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