R v Su & Goerlitz
[2003] VSC 306
•11 August 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1518 of 2002
| THE QUEEN |
| v |
| 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 could be the police or someone, (the witness thought maybe his boss), that were looking for them. Both men ran and hid and the vehicle apparently passed by with its headlights now on high beam. Ultimately, having run across vacant land, and after walking down the railway tracks to a nearby railway station, Alex Su called Room 7 at the Jika Motel. The call was made at 2.35 a.m. Despite the hour, the accused Goerlitz was apparently present and in response to the call he drove out with the minder to pick up Su and L. JL told the jury that when the driver, Goerlitz, asked Alex Su what had happened, he responded that someone was looking for them; (the witness could not recall whether he was referring to his boss or the police).
According to Mr L's evidence-in-chief, the accused Goerlitz said to Alex Su he should not be walking around in the middle of the night. It was not like China where there were a lot of people walking in the middle of the night and no one cares. In Australia it was strange that two guys were walking in the middle of the night and they could be picked up easily. The actual questions and answers are at p.364 ff of the transcript. The cross-examination of Mr L on this topic appears at p.562 ff. It is sufficient to state that Mr L adhered to his evidence-in-chief.
Thereafter, the accused Goerlitz drove the group to various motels in an unsuccessful effort to hire a room. Eventually, accommodation was obtained at the City Park Hotel.
On 17 March, it was necessary to change rooms and, as I apprehend the evidence, the accused Goerlitz booked a new room, (No. 301), using his driver's licence for identification. Next, Goerlitz drove back to the Jika Motel to retrieve the jacket of Alex Su which had been left in Room 7. He was observed at that location by investigating police. From there, he travelled to his Southbank apartment and remained under police surveillance until arrested at about 10.00 a.m. on 18 March. Mobile phones were found in his vehicle, including one which had previously been the repository of a SIM card used by JL to phone his girlfriend CH on 9 March.
In a record of interview, Shaun Goerlitz made no admissions of any involvement in the kidnapping. However, he denied having been at the Jika Motel recently - a lie which the Crown submits evinces a consciousness of guilt.
Evidence of the remarks made by Goerlitz to Su in the early hours of 16 March has been led by the Crown, not as showing any consciousness of guilt, but as demonstrating knowledge that the kidnapping was taking place and as indicating a preparedness to assist and/or encourage it.
Prima facie, the adducing of such evidence is a legitimate forensic exercise. It is, however, submitted by Mr Papas, who appears on behalf of Shaun Goerlitz, that this evidence is equivocal and incapable of sustaining the inference which the Crown wish the jury to draw. This is because, at the time of the conversation in the car on 16 March, the accused Su was on the run from police who had issued a warrant for his arrest on drug importation charges. This fact was known to Goerlitz, (who indeed had recently been committed for trial for the same transaction the subject of the warrant). Consequently, his cautionary words to Su were referable to that situation as much as they were referable to any knowledge of, and assistance in, the kidnapping. Accordingly, given the equivocal nature of the comments, they should not have been led in evidence.
In support of this contention, Mr Papas cited several cases decided by the Victorian Appellate Court. The earliest of these was R v. Thanh Long Nguyen[1]. This was a case where the accused's false denials went before the jury as evincing a consciousness of guilt of theft, whereas they were equally applicable to the offence of handling which had not been charged and was, therefore, not before the jury. Hence the appeal succeeded.
[1]60 A.Crim.R. 196
In the same vein is the case of R v. Hartwick[2]. Here the consciousness of guilt was flight, but that flight could equally have been linked to either of two armed robberies committed on different occasions and the subject of different trials. The Crown argued that flight could be used in relation to both offences, but the Court held that there was a reasonable hypothesis that it demonstrated a consciousness of guilt of only one of the specified armed robberies. Accordingly, the conviction was quashed.
[2](an unreported decision of the Court of Appeal delivered on 20 December 1995)
Each case will obviously turn on its own facts. In the instant case, the jury would obviously be entitled to consider the conduct of the accused Goerlitz in its totality. Included within that totality are the impugned utterances of the accused. On one view, they are made in the context of the police or the accused Su's boss looking for "them". It is also to be noted that the reference is to "us" rather than Su himself and the response of Goerlitz is also couched in terms of both Su and L being picked up. In the context of the surrounding behaviour of the accused Goerlitz, to which I have already referred at length, I have concluded that the evidence is admissible. The alternative hypothesis, namely that Goerlitz was concerned solely about Su being picked up on the drug importing warrant is one which may certainly be placed before the jury. However, the jury would be entitled, in all the circumstances, to reject it and to be satisfied beyond reasonable doubt of the Crown contention as to the meaning of the words used by Goerlitz.
The ruling that this evidence is admissible creates its own problems in this joint trial, since Mr Papas, resolutely proposes to adduce evidence relating to the warrant from police witnesses in order to provide an innocent explanation for the comments of the accused Goerlitz. This course, in itself, presents forensic risks, but Mr Papas is apparently prepared to run them.
Clearly, the placing before this jury of material to the effect that the accused Su may be regarded as a drug importer on the run from the police, would be severely prejudicial to him. On the basis that such evidence was to be elicited, Mr O'Connell argued for a separate trial for the accused Su.
The principles relating to the determination of whether or not a court should order a separate trial are relatively well settled. In Victoria, they are conveniently set out in R v. Demirok[3] and have been applied in such cases as R v. Gibb and McKenzie[4]; R v. Jones and Waghorn[5]; and, more recently, in R v. Hickey and Komljenovic[6]. In the last of these cases the Court of Appeal remarked (at p.570):
"In R v. Demirok [1976] VR 244 the Full Court (at p.254) summarised as follows the matters of public interest relevant to an order for separate trials:
'In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials'."
[3](1976) VR 244
[4](1983) 2 VR 155
[5](1991) 55 A.Crim.R. 159
[6](1995) 89 A.Crim.R. 554
On the other hand in Darby[7] Gibbs CJ, Aitken, Wilson and Brennan JJ said:
"... there is much to be said for the recent decision of the Supreme Court of Canada in Guimond (1979) 44 CCC(2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice ...."
[7](1982) 148 CLR 668 at 678
As Toohey J said in Webb[8]:
"In the end, the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused."
[8](1994) 181 CLR 41 at 89; 73 A.Crim.R 258 at 293
That sentiment had previously been articulated in Demirok's case at p.255 where the Full Court remarked:
"Essentially, an accused man is entitled to a trial conducted in accordance with the relevant rules, the objects of which include ensuring that the evidence tendered against him is admissible evidence and that he is not exposed to prejudice by the introduction against him of material which is irrelevant or in some situations only marginally relevant."
I should add that an extremely useful discussion of the relevant law is found in an article entitled "Joint Trials - the Problem of Reciprocal Blame" by Mark Weinberg, (now Justice Weinberg of the Federal Court of Australia) in (1984) Vol. 8 Criminal Law Journal at p.197 ff.
The prejudice occasioned to the accused Su, if this evidence were permitted to be led, would be very significant indeed, particularly having regard to the defence which substantially involves issues of credit between the principal Crown witness L and the accused Su. Quite obviously, this is not evidence which could be adduced by the Crown. Although there is a suggested discretion vested in a trial judge to prevent a co-accused leading such evidence (see R v. Darrington and McGauley[9]), it is not a discretion which I would exercise in this case.
[9][1980] VR 353
Mr Kayser on behalf of the Crown very fairly expressed his concerns as to whether the acknowledged prejudicial effect of this evidence could be reduced by way of judicial direction. He posed the problem without proffering an answer. For my part, I doubt whether the balm of any judicial direction could alleviate the forensic wound this evidence represents.
In short, I have concluded that the admission of this evidence on behalf of Goerlitz would deprive the accused Su of a fair trial. It follows that I should order separate trials of this matter. There is universal agreement that, in the circumstances, it is the trial of Su which should proceed.
Finally it should be noted that the granting of a separate trial in this matter would not occasion many of the potential difficulties referred to in the authorities. The differing roles of the co-accused eliminates the spectre of contradictory verdicts; nor is this a case where a jury would be deprived of the opportunity of assessing co-offenders accusing each other of the commision of the crime charged. Further, a second trial involving the accused Goerlitz would necessarily be shorter given the alleged nature of his participation in the kidnapping. Similarly, the quantum and intensity of cross-examination of witnesses required to give evidence twice would be greatly diminished with, hopefully, a parallel reduction in the level of trauma involved for them. Indeed, depending on the result of the trial of Su, there may be no second trial. The reduced length of a second trial would also bring with it a consequent reduction in the expense involved.
Accordingly, in all the circumstances, I propose to order separate trials in this matter.
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