Director of Public Prosecutions v Cavkic, Athanasi and Clarke

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1497 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

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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CaseChat Overview and Summary

The appeal before the court involved the Director of Public Prosecutions on behalf of the Commonwealth of Australia against the appellants, Cavkic, Athanasi, and Clarke. The appellants were convicted of murder and conspiracy to commit murder. The primary focus of the appeal was the admissibility of certain evidence that was excluded by the trial judge on the basis of it being potentially prejudicial. The case was heard in the High Court of Australia.

The central legal issue revolved around the extent to which the trial judge's decision to exclude certain evidence was justified under the principles of admissibility in criminal trials. Specifically, the court had to determine whether the exclusion was appropriate given the potential for the evidence to unfairly prejudice the jury against the appellants. The court also considered whether the exclusion of the evidence impacted the fairness of the trial or the reliability of the verdict reached.

In delivering the judgment, the court examined the principles guiding the admissibility of evidence in criminal trials, particularly in relation to its probative value versus the risk of prejudice. The court held that the trial judge's decision to exclude the evidence was within the bounds of judicial discretion, as the potential for prejudice outweighed the probative value of the evidence. The court further determined that the exclusion did not render the trial unfair or affect the reliability of the verdict, affirming the original convictions. The judgment underscored the importance of balancing these considerations to ensure a fair trial while protecting the rights of the accused.

No additional orders were made by the court beyond affirming the convictions of the appellants. The ruling concluded that the exclusion of the evidence was appropriately managed, and the trial's integrity was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established