Director of Public Prosecutions v Cavkic, Athanasi and Clarke
[2004] VSC 119
•25 February 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1497 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SUDO CAVKIC COSTAS ATHANASI JULIAN MICHAEL CLARKE |
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2004 | |
DATE OF RULING: | 25 February 2004 | |
CASE MAY BE CITED AS: | DPP v Cavkic, Athanasi & Clarke | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 119 | |
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RULING NO. 3
Criminal law – Trial – Murder – Evidence – Admissibility – Evidence excluded on ground of prejudice.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr C. Hillman S.C. with Ms G. Cannon | K. Robertson, Office of Public Prosecutions |
| For the accused Mr Cavkic | Mr D. Drake | Victoria Legal Aid |
| For the accused Mr Athanasi | Mr D. Allen with Mr T. Kassimatis | Clarkson & Socio |
| For the accused Mr Clarke | Mr D. Wraith | Wightons |
HIS HONOUR:
I am not persuaded that the material contained in paragraph 4 of the statement of Ms McKenzie, at 612 of the depositions, is properly admissible.
The material is, in my view, highly prejudicial to Mr Clarke. It states: "About a month before I left the office Julian approached me and put a proposition to me. He suggested that we use Titles that were held on trust at the office to borrow money against these clear Titles. His idea was to forge the signatures of the owner of the Title and hence obtain the money."
Continuing on: "Julian explained to me what he wanted to do, but I didn't want any part of it. He told me that the Titles held by elderly people wouldn't be activated for years and therefore it wouldn't be discovered for ages."
That is the relevant part. The rest is simply speculation by the witness, and plainly on its face not admissible.
This matter, as I understand it, was some three years before the defalcations, which are the subject of disputation between the parties here, or at least the subject of confession and avoidance between the parties.
In my view the remoteness in time is a matter of significance. The prejudicial character of the material is also a matter of significance. Mr Clarke has been charged before this jury with the matter which is the subject of that paragraph, and accordingly I consider it would be unfair and inappropriate to admit it, and I accordingly, in the exercise of my discretion, exclude it.
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