R v Su & Goerlitz - [2003] VSC 306

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1518 of 2002

THE QUEEN

ALEXANDER SU AND SHAUN GOERLITZ

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 AUGUST 2003
DATE OF RULING:	11 AUGUST 2003
CASE MAY BE CITED AS:	R v ALEXANDER SU & SHAUN GOERLITZ
MEDIUM NEUTRAL CITATION:	[2003] VSC 306

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Ruling – Admissibility of prosecution evidence against second accused considered – Prejudicial effect on the first accused of evidence to be adduced by second accused in attempting to neutralise prosecution evidence – Applicability of principles relating to separate trials discussed – Prosecution evidence ruled admissible – Separate trials ordered to ensure fair trial for first accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser with Mr D. Gurvich	Kay Robertson, Solicitor for Public Prosecutions
For the First Accused	Mr M. O'Connell	Lethbridges
For the Second Accused	Mr N. Papas	Lewenberg & Lewenberg

HIS HONOUR:

The question has arisen as to the admissibility of a portion of the evidence led by the Crown against the accused Shaun Goerlitz. In considering this issue, such evidence must be placed in context.

The Crown case against Goerlitz is that he aided and abetted the accused Su in kidnapping JL. That kidnapping is alleged to have commenced with the forcible abduction of Mr L on 3 March 2001. The accused Goerlitz first appears on the scene in the afternoon of 12 March when he entered the room at the Jika Motel in company with Su. On that date, at Su's behest, he obtained some food for the group. He next appears in the Crown narrative of events on the morning of 14 March when he drove Su, JL and the person known as "the minder" to the Bell Motor Inn. Goerlitz was driving his own blue two-door vehicle on this and on all other occasions in which he features in this incident.

On 15 March, Goerlitz drove the same group of persons back to the Jika Motel. He also procured lunch for them. By this stage Mr L was being kept in Room 7 of the motel. During the afternoon this accused drove Su and L to Box Hill where Mr L telephoned his brother VL. He further drove them out during the evening when calls were made to VL at 10.56 and 11.17 p.m. During that evening, Goerlitz obtained medication, (Emetrol), for Su from the pharmacy of Renn & Barker in Station Street, Fairfield.

In the early hours of 16 March, L and Su walked to a 7-Eleven store in Fairfield where JL twice phoned his girlfriend CH at 12.16 and 12.25 a.m. Other calls connected with the kidnapping were subsequently made from a pay phone to VL at 1.04 and 1.08 a.m. While walking back to the Jika motel, a dark-coloured blue Commodore travelled past the couple, did a U-turn, and then turned its headlights off. According to the evidence of JL, Alex Su said to him that it…

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 Su & Goerlitz

Details

AGLC: R v Su and Goerlitz [2003] VSC 306
Case: [2003] VSC 306
Decision Date: 11 August 2003

CaseChat Overview and Summary

The case of R v Su & Goerlitz involved two defendants, Su and Goerlitz, facing criminal charges. The central issue was the admissibility of certain prosecution evidence against Goerlitz, which was considered potentially prejudicial to the first accused, Su. The matter was heard and determined in the higher courts of Australia. The primary legal issues revolved around whether the evidence to be presented by Goerlitz in his defence could neutralise the prosecution evidence, and if the principles applicable to separate trials should be invoked to ensure a fair trial for both defendants.

The court considered the potential prejudicial effect on Su if the prosecution evidence against Goerlitz were to be adduced. It was established that if the evidence presented by Goerlitz could successfully counter the prosecution evidence, the prejudicial effect on Su would be mitigated. However, if Goerlitz's evidence could not adequately address the prosecution's case, it would be unfairly prejudicial to Su. The court also examined the applicability of principles relating to separate trials, which allow for the separation of defendants' trials to prevent one defendant's evidence from unfairly influencing the other.

The court ruled that the prosecution evidence was admissible against Goerlitz. However, to ensure a fair trial for Su, the court ordered separate trials for the two defendants. This decision was based on the principle that a fair trial must be ensured for each defendant, and the potential prejudicial effect of the prosecution evidence on Su warranted separate trials. The court held that separate trials would mitigate any unfair prejudice and allow each defendant to present their defence without interference from the other's evidence.

The final orders of the court were that Goerlitz's trial would proceed with the prosecution evidence being admitted, while Su's trial would be held separately to prevent any prejudicial effect from Goerlitz's evidence. This decision ensured that both defendants received a fair trial, with the court balancing the need to admit relevant evidence against the imperative of fairness in the judicial process.

Orders