R v Heferen, Georgiou, Edwards

[2001] QSC 128

SUPREME COURT OF QUEENSLAND

CITATION:

R v Heferen, Georgiou, Edwards [2001] QSC 128

PARTIES:

THE QUEEN
v
STEPHEN PATRICK HEFEREN
and
LOIZOS GEORGIOU
and
LESLIE ARTHUR EDWARDS

DIVISION:

Trial Division

FILE NO:       

92 of 2000

DELIVERED ON:

30 April 2001

DELIVERED AT:

Rockhampton

HEARING DATE:

18 & 19 April 2001 in Townsville

JUDGE:

Dutney J

ORDER:

Applications for change of venue refused.
Applications for separate trial refused.

CATCHWORDS:

CRIMINAL LAW – CHANGE OF VENUE – SEPARATE TRIALS – PRE-TRIAL PUBLICITY – whether prejudiced fair trial – inadmissible evidence against co-accused insufficient basis to entitle separate trials

Montgomery v H.M. Advocate [2001] 2 WLR 779,considered
Morris v R (SC(VIC) – JD Phillips J – 16.09.1991 – unreported), distinguished
R v Hadlow(Mackenzie J – 05.11.1990 – unreported), discussed and distinguished
Webb v R; Hay v R (1994) 181 CLR 41, followed
R v Davidson [2000] QCA 300, followed

COUNSEL:

Mr P Smid for the Crown
Mr P Dylan for Hefferen
Ms C McLennan for Georgiou

Mr C Choudrey for Edwards

1. DUTNEY, J: Stephen Patrick Heferen, Loizos Georgiou and Leslie Arthur Edwards are charged jointly with the murder of Ferdinand Marinus Bast.  Also on the indictment and also charged with the same murder is Jodie Janelle Rice.  The three male accused have each brought applications to transfer the hearing of the charge away from Townsville and for separate trials.  At the commencement of the hearing of these applications Ms Rice was an indemnified Crown witness.  In consequence of the evidence she gave before me that indemnity may be withdrawn and the Crown may wish to proceed on the count against her.  In view of her status, however, she was not, initially at least, represented and has not made any application although I have indicated that she is not precluded from doing so in the future.

1. It seems beyond dispute that the death of Mr Bast has attracted notoriety in the Townsville region.  An affidavit of a Mr Stevenson filed on behalf of Mr Georgiou summarises the newspaper coverage given to the alleged crime, the subsequent arrests, committal, trial and successful appeal of each of the three male accused.  It is readily apparent from the summary that interest in the matter is largely confined to the Townsville area.  Apart from some minor reporting of the death and the trial interest outside Townsville seemed confined to the unusual circumstances in which the appeals against conviction were allowed.  Television coverage has also been extensive with almost all reports containing a still photo of the deceased and a photo of the accused, Edwards.

1. Locally, the killing of Mr Bast has been dubbed the “Good Samaritan Murder”.  This is a reference to the biblical parable with which this case is said by the media to have some vague similarity.  Mr Bast, lived near a chemist shop which the accused were allegedly breaking and entering to steal Sudafed to use in the manufacture of amphetamines.  Mr Bast intervened and pursued the intruders and in doing so was shot by one of them.

1. The killing was on 1^st May 1999.  It has borne the label “Good Samaritan Murder” ever since.  On 3^rd May 1999 an editorial in the Townsville Bulletin eulogised Mr Bast’s bravery.  Media coverage from 1 May 1999 until the arrests was extensive.  The committal was subject to some publicity.  The first trial was in May 2000 and lasted four weeks.  It had daily coverage.  A particularly emotive report appeared in the Townsville Bulletin on 27 May 2000 following the conviction of the three present applicants.  Photos of the three applicants surmounted by a caption, “Faces of Shame” appeared with the word “Murderer” and the name of the relevant person below each picture.  Below that was the main heading on the front page which was “3 Guilty of Bast murder” and a picture of Mr Bast.

1. Following the convictions there has been little publicity.  Mr Edwards’, conviction for a firearms offence shortly afterwards was reported with the comment that he had first come to notoriety by being involved in the “Good Samaritan murder”.  The outcome of the appeal was reported as was the hearing of these applications.  Neither set of reports seemed to me to be particularly emotive and both seemed factually correct.

1. It is interesting, although not particularly relevant, that no application for change of venue preceded the first trial.  At that time the event was about a year old.  It is now a further year since the death and a year since the publicity of the first trial.

1. Despite the catchy title and publicity given to the alleged crime the empirical evidence does not suggest the jury in the first trial were swept away by emotion.  Their deliberations extended over three days and the jury were unable to reach a verdict in relation to Ms Rice.

1. It is of some significance that neither the deceased nor any of the accused were public or prominent figures apart from these events.

1. Recent studies in New Zealand and New South Wales suggest that the impact of publicity on juries is greatly overstated, a fact to which reference was made by Lord Hope in the Privy Council in Montgomery v H.M. Advocate [2001] 2 WLR 779 at 809.

1. It seems to me that such hostility as might realistically have been thought to influence a jury when the alleged crime was committed or even when the first trial was held will have long since abated.  Even the media would, in my view, have trouble whipping up the same level of interest again and recent reports suggest it is unlikely to attempt to do so.

1. The general expectation that a trial will ordinarily be held in the place where the crime was committed does not seem to me to be displaced by anything here.  I am not persuaded that there is a serious risk that the accused will not get a fair trial in Townsville despite the affidavits of D’Alton, Guilfoyle, Mackay and Stein.  The evidence of the first trial and the lengthy period since suggest otherwise.  It should be noted that Townsville is not a small community having more than 140,000 people in the area from which jurors are drawn.

1. My attention was drawn to a decision of Morris v R (SC(VIC) – JD Phillips J – 16.9.1991 – unreported) where a case was transferred because of the impact of a crime on a local community.  That case does not seem to have relevance here.  Shepparton, where that trial was to take place is a town of less than 30,000 people or about 20% the size of Townsville.  The deceased in Morris was a prominent local identity with a large extended family in the town.  His honour there indicated at page 5 of the judgment in the Butterworths electronic format that the “unusually drawn out” publicity would not in itself have been sufficient to justify a transfer.  The application before me is based solely on publicity, unlike, for example, R v Hadlow (Mackenzie J – 5.11.90 – unreported) where a trial was shifted from Roma not just on grounds of notoriety but more particularly because a large part of the town community had been involved in the search for the infant deceased and were thus in a personal sense emotionally involved.

1. I refuse the applications for change of venue.

1. I now turn to consider the issue of separate trials.  I can deal quickly with the application by Mr Heferan and Mr Georgiou.

1. As a general proposition persons jointly charged with an offence should be tried jointly:  see Webb v R; Hay v. R (1994) 181 CLR 41 at 88-89.

1. Mr Georgiou seeks only a separate trial from Mr Edwards.  His grounds are a little puzzling.  Part of the case against Mr Edwards in an alleged prison confession to another prisoner, a Mr West.  It is said that Mr West’s evidence is unfairly prejudicial to Mr Georgiou.  Mr Georgiou admits being at the scene of the shooting but says Edwards was the shooter and he, Georgiou, had no forewarning that Mr Edwards had a gun.  In his statement Mr West claims that Mr Edwards said to him:

   “Well there was only me and Georgiou present when I shot the guy.”

This statement is clearly inadmissible against Georgiou but it seems to me to have no impact on his defence in any case.  I can see no undue prejudice to Mr Georgiou in a joint trial.

1. Mr Heferen’s defence is that he was not at the scene of the killing.  He is said to be prejudiced by a joint trial primarily because inadmissible statements by Edwards to West paint a picture of him as a dangerous druglord and that this will affect his defence.  I am not persuaded that appropriate directions to the jury will not be a sufficient protection for Mr Heferan.  I am comforted in this because the statement by Edwards to West does not suggest Heferan was present at the killing.  It rather suggests to the contrary.

1. A submission was made that the fact that the Crown has not charged a woman called Colleen Jackson who was allegedly also at the scene was a reason for a separate trial.  With great respect to Mr Dillon and his detailed argument I do not understand what the relevance of the Crown or the police not charging Ms Jackson has to whether or not Mr Heferen should get a separate trial.

1. Mr Edward’s defence is that although he was present at the scene he was not the shooter and did not know Georgiou had a gun.  The police interviews with Mr Heferen and Mr Georgiou contain repeated references to Mr Edwards being the shooter.  The substantial and unusual risk to Mr Edwards in these inadmissible statements being led against the other accused is submitted to be that the jury, despite warnings, will use them to corroborate the evidence of Mr West.  Further, the statements of Heferen and Georgiou paint a picture of Edwards as a man of exceptionally bad character, violent disposition and racist views.

1. In the event that Ms Rice is tried as a co-accused with the three present applicants the weight of inadmissible evidence against Mr Edwards is increased.  Because her position is uncertain, however, I propose to proceed on the basis that only the three present applicants are to be tried.  If that position were to change that may be a material change of circumstances so far as Mr Edwards is concerned.

1. It should be noted that the case against Mr Edwards is a strong one.  He admits being at the scene.  There is a full confession to Mr West.  There is a statement to another person on the day after the event that he, Edwards had done something bad.  There is evidence of Mr Edwards having a gun before the event.  There is also evidence of Edwards with Heferen destroying the gun after the event.  Ammunition similar to that which killed Mr Best was also found in Mr Edward’s possession after the event.  A similar bullet was found in Rice’s car a day or two after the shooting.  A car matching the description of Ms Rice’s car was seen at the scene at the time of the shooting.  Between being taken into custody and his alleged statement to Mr West, Mr Edwards acquired a tattoo reading “The Real Thing”.  It is said that the evidence will show that in prison jargon this signifies that the bearer has killed someone.

1. In R v Davidson [2000] QCA 300 de Jersey CJ and Davies JA at [12]-[13] set out the current position in these terms:

   [12]Generally there are strong reasons of principle and public policy why joint offences should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials.  Moreover the exercise by the trial judge of the discretion conferred by s 606 of the Criminal Code against separate trials for joint offenders is rarely interfered with.  That is not to say of course that the facts may never disclose such potential for unfairness that separate trials should never be ordered.  But R v. Lewis and Baira is an example of a recent case in which an appeal against refusal of separate trials was dismissed in circumstances in which the evidence of one co-accused of rape was highly prejudicial to the other.

   [13] In Gilbert v The Queen both majority and minority judges agreed that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions they are given by trial judges.  However the majority rejected the assumption that prejudice may not affect the jury’s decision-making.  Accepting as we do that there may be some cases in which it is appropriate to order separate trials, even in a case involving joint offences, where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, and accepting also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge, we do not think that this is such a case.

1. Here, as far as Edwards is concerned I do not think it is impossible to disentangle the evidence against from the prejudicial but inadmissible statements of Georgiou and Heferen.  Until such time as a final decision is made as to whether Ms Rice is also to be a co-accused at the same trial, the effect of which on Mr Edward’s application I have no fixed view at this stage, I am not persuaded that the effect of Mr Edward’s position is sufficiently unusual to depart from the general policy of joint trials for the same offence.

1. For the above reason I refuse each of the applications for a separate trial.