Regina v C Georgiou (Judgment No 1)

[1999] NSWSC 406

CITATION:	Regina v C Georgiou (Judgment No 1) [1999] NSWSC 406
CURRENT JURISDICTION:	Criminal Division
FILE NUMBER(S):	70069/98
HEARING DATE(S):	30/04/99
JUDGMENT DATE:	5 May 1999
PARTIES :	Regina v Constantine Georgiou
JUDGMENT OF:	Sperling J

COUNSEL :	For Crown: W G Dawe QC For Accused Constantine Georgiou: C Steirn SC
SOLICITORS:	For Crown: P McNamara (DPP NSW) For Accused Constantine Georgiou: Zenos Jordan
CATCHWORDS:	CRIMINAL LAW - criminal procedure - application for separate trial.
CASES CITED:	Baartman (6 October 1994, unreported); Fernando [1999] NSWCCA 66; Middis (Hunt J, 27 March 1991, unreported)
DECISION:	Application for a separate trial refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

SPERLING J

Wednesday 5 May 1999

70069/98 - Regina v Constantine Georgiou

JUDGMENT No 1

HIS HONOUR:
1 Constantine Georgiou and Bruce Malcolm Harrison are charged with the murder of Rick de Stoop, Sasha Milenkovic and Michael Kulakowski on 9 November 1997, and with the attempted murder or Robin April David on the same occasion. Mr Georgiou has applied for a separate trial.
2 The three deceased and Mr David were all members of the Bandido Outlaw Motor Cycle Club, Mr Kulakowski being the Club’s National President and Mr Milenkovic being the Club’s Sergeant at Arms. Mr Georgiou was a current member of the Rebels Outlaw Motor Cycle Club. Mr Harrison was an associate of Mr Georgiou and a former member of that Club.
3 The Crown case against the co-accused is as follows. Mr Georgiou and Mr Harrison acted in concert from beginning to end. They travelled to the Black Market Café in Mr Georgiou’s Porsche motor vehicle. The deceased were killed by gun shot wounds and Mr David was wounded by gun shot. The shooting took place in a basement area of the Café which is not open to the public. A Mr Culshaw, an off-duty doorman employed at the Café and a current member of the Rebels Outlaw Motor Cycle Club, obtained the keys to the basement from the bar attendant. The deceased, Mr Milenkovic, left the group of people he was with for a short time and, on returning, said to the deceased, Mr Kulakowski, that Mr Culshaw and Mr Georgiou wanted to have a meeting with them. The three deceased then left the people they were with and went towards the door to the basement. About five minutes later gunshots were heard from the basement. Mr Georgiou was seen running from the basement door, followed by Mr Harrison who was waving a gun. The two men ran from the Café and were seen running along the street. Mr Harrison was observed to have his right hand down the front of his trousers inside a long black overcoat as if concealing something. They ran to Mr Georgiou’s Porsche. Mr Georgiou entered the driver’s side and Mr Harrison the passenger’s side, and the vehicle was driven off. Police pursued the vehicle at high speed and then at a safer distance. In Crown Street, a metal object was seen to be thrown from the passenger window of the vehicle. It was recovered by the police and found to be a Smith & Wesson pistol. A Baretta pistol was also located nearby. Soon after, the Porsche was located in Hutchinson Lane, Surry Hills. Mr Harrison was seen walking away from the vehicle. He was apprehended, broke free, and was recaptured and handcuffed. Mr Georgiou was not present. A Mr Spanakakis (who is charged with being an accessory after the fact) and others obtained a ticket for Mr Georgiou to travel by sea to Japan on the vessel “Arafura”. On 3 February 1998 Mr Georgiou was apprehended on the vessel, carrying a stolen passport, a driver’s licence in a false name and a large amount of cash. He was arrested.
4 The forensic evidence against Mr Harrison includes the following. Mr Harrison was found to have been shot in the left wrist. A pair of gloves found on the front seat of the Porsche were stained with blood which could not be excluded from having originated from him. DNA recovered from a .25 spent bullet, found on the floor of the basement near the deceased, Mr De Stoop, was very likely to be from Mr Harrison. DNA recovered from Mr Harrison’s footwear was very likely that of the deceased Mr De Stoop.
5 Forensic evidence against Mr Georgiou includes the following. The Smith & Wesson pistol was purchased in 1990 and later given to Mr Georgiou. Photographs were found on Mr Georgiou’s premises depicting him and others holding pistols identical with the Smith & Wesson and Baretta pistols recovered in Crown Street. Premises depicted in those photographs were searched and a number of bullets and cartridges fired from the Smith & Wesson and Baretta pistols were recovered. Four cartridge cases recovered from the murder scene were fired from the Smith & Wesson pistol. Two damaged bullets recovered from the murder scene were fired from the same pistol. A bullet fragment was discharged from that pistol. A damaged copper bullet jacket and a damaged lead bullet core, discharged from the Smith & Wesson pistol, were recovered from the body of the deceased, Mr Kulakowski.
6 On 10 November 1997, the accused, Mr Harrison, participated in an electronically recorded interview with the police, attended by his barrister. Relevantly, Mr Harrison said that he was driven to the Café by Mr Georgiou in the Porsche, which was parked in a street near the Café at a point specified in a diagram drawn by Mr Harrison and annexed to the record of the interview. Mr Harrison went on to give the following account of events. When he arrived at the Cafe, Mr Harrison had been drinking and was drunk. Mr Harrison went to the toilets and then to the cloakroom area. He started taking off his jacket when his hand was hit violently. Mr Georgiou had been out of sight for only two minutes. Mr Harrison went out of the Club. He noticed that his hand was injured and saw blood coming from it. Mr Georgiou grabbed him by the elbow. Mr Georgiou walked him to the Porsche. Mr Harrison assumed that Mr Georgiou was going to take him to hospital. They got in the car, Mr Georgiou driving. Mr Georgiou was driving fast. He said they had to get Mr Harrison to hospital. Mr Harrison denied throwing anything out of the vehicle and said he did not recall Mr Georgiou doing so. He said he could not recall breaking free when he was apprehended by the police.
7 At a joint trial, Mr Harrison will require the Crown to tender the electronic record of the police interview and the sketch plan showing where the Porsche was allegedly parked.
8 Mr Georgiou has served a notice of alibi. The witness statements provided support his case that he was not at the Café at the relevant time.
9 The principles of criminal procedure relating to applications for a separate trial are clearly established by the authorities. Where the facts constituting the alleged offences have much in common, the interests of justice are best served by a joint trial. That is particularly so where the Crown case is that the accused were engaged in a common enterprise. On the other hand, there should be a separate trial if a joint trial would not be a fair trial. In Middis (27 March 1991, unreported), Hunt J specified the way in which these considerations are to be weighed, in a passage approved by the Court of Criminal Appeal in Baartman (6 October 1994, unreported) and Fernando [1999] NSWCCA 66. He said:
“Briefly, the relevant principles are that:

(1) Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
(2) where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
(3) where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.”

10 I am not persuaded that, in the present case, the evidence against the applicant is significantly weaker than that against his co-accused. Much of the evidence against Mr Georgiou and Mr Harrison will be the same, it being the Crown case that they acted in concert throughout. Some of the evidence, as I have indicated, will be different but it substantially the same case which the Crown will seek to prove against each of them.
11 The tender of the electronic record of Mr Harrison’s police interview would be prejudicial to Mr Georgiou. It has the potential to cast a shadow over Mr Georgiou’s denial that he was present at the Café and over his alibi evidence. That, however, is as far as the prejudice might go. This is not a case in which the co-accused implicates the applicant in the commission of the crime in an attempt to exculpate himself. Mr Harrison did not purport to know, in his interview, what Mr Georgiou was doing while he was out of Mr Harrison’s sight. Furthermore, the potential prejudice is capable of being specified in a straightforward way. A clear and unequivocal instruction to the jury could be formulated not to use the Harrison interview as evidence that Mr Georgiou was present at the Café or as evidence of anything done by him.
12 I do not assume that juries invariably implement instructions of that kind. Such an assumption would preclude the grant of a separate trial in every case where evidence to be adduced against or in favour of a co-accused would be potentially prejudicial to the applicant. The confidence which one would have in such an instruction being followed will vary from case to case. Where, as in the present case, the potential prejudice is readily identifiable and can be made the subject of an appropriate instruction in a straightforward way, there is reason to expect that a jury would understand and follow the instruction. In such a case, there is no serious risk that the case against the applicant will be immeasurably stronger by reason of the prejudicial material.
13 Having regard to these considerations, I am not satisfied that the applicant, Mr Georgiou, would suffer a positive injustice in a joint trial. The application should accordingly be refused.
14 The order I make is that the application for a separate trial is dismissed.

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