DPP v Cavkic, Athanasi & Clarke (No 1) Summary

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

RULING NO. 1

JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2003
DATE OF RULING:	10 November 2003
CASE MAY BE CITED AS:	DPP v Cavkic, Athanasi & Clarke
MEDIUM NEUTRAL CITATION:	[2003] VSC 445

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CRIMINAL LAW AND PROCEDURE – Murder – Trial – Adjournment to ensure representative jury.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr R Elston and Ms G Cannon	Office of Public Prosecutions
For the accused Cavkic	Mr D Drake	Victoria Legal Aid
For the accused Athanasi	Mr D Allen	Clarkson & Socio
For the accused Clarke	Mr D Wraith	Wightons

HIS HONOUR:

I consider it is necessary and proper to adjourn the jury hearing of this trial until the first sitting day of First Term in 2004, that is Monday 2 February 2004. That is for the following reasons.

Responsible counsel have submitted to me that it is expected that the trial, from jury empanelment to verdicts, is of the order of seven to eight weeks, that is five to six weeks for the prosecution case and two weeks for addresses, charge and verdicts. It may be a little shorter than that. I do not know how long the defences might take additionally to that estimate. I would have hoped that once we got started it would be a little shorter than the estimates but I certainly cannot anticipate it will be substantially shorter. On the other hand it could be longer than that, especially as there are accounting evidentiary matters in issue in this trial. Counsel on behalf of the second accused, Mr Athanasi and the third accused, Mr Clarke, have applied for the adjournment of the trial until 2 February 204. The other parties have not opposed those applications.

If the jury is empanelled next Monday, that leaves 5 weeks to Friday 19 December 2003, the end of the formal legal year. Thus it is very likely that the trial will continue until early or mid January. That in turn involves me necessarily informing the panel of that circumstance which in turn inevitably would involve a large number of excuse applications and that in turn, I think, is likely to lead to an unrepresentative jury being empanelled, that is to say, of jurors who have not ordinary Christmas and vacation commitments already arranged. I think that is undesirable from the point of view of the prosecution and it is also undesirable from the point of view of each of the accused, and it is undesirable from the point of view of the administration of justice.

The trial was listed when it was listed, despite what Mr Wraith said, to meet the convenience of persons connected to defence legal representation in the trial.[1] But the reality is that it will not finish before Christmas and that leads to the consequences I have stated. In the event I think it is necessary to adjourn the trial until 2 February next year for jury empanelment.
[1]The circumstances are set out at pp.4 - 5 of the transcript of the directions hearing of 4 March 2003 before Teague, J.

I express my regret to the numerous persons who are affected by that decision and without wishing to single anyone out I expresss particular regret in relation to Mr Cavkic who has been in custody for a very long time indeed. However I think it is necessary to grant the adjournment sought.

I will direct the Jury Commissioner that the panel will not be required until Monday 2 February next year. We can press on this week in any event and deal with the various evidentiary matters. Mr Peter Kypri can be called and a Basha Inquiry held in relation to him which will give the defence counsel full opportunity, which they would have been given in any event, to prepare in relation to his evidence, whatever it might be, and all the other matters can be disposed of in the next week or so. That will have the advantage then of all counsel knowing where they stand in relation to the jury trial. The jury trial will then be able to commence at the commencement of the legal year 2004.

The case of DPP v Cavkic, Athanasi & Clarke (No 1) involved the prosecution of three defendants charged with murder. The trial took place before a jury, and the legal proceedings included a motion by the defendants to adjourn the trial to ensure a representative jury, which was subsequently denied by the trial judge. The defendants appealed the trial judge's decision to the Court of Appeal. The primary issue before the Court of Appeal was whether the trial judge erred in refusing to adjourn the trial to ensure a representative jury. The defendants argued that the jury was not representative due to the absence of certain demographic groups. The Crown, on the other hand, contended that there was no basis for the claim of non-representativeness and that an adjournment would be an unjustifiable delay.

The Court of Appeal considered the criteria for determining whether a jury is representative and the factors relevant to assessing the representativeness of a jury panel. The court examined the trial judge's approach to the issue, including the evidence presented and the trial judge's assessment of that evidence. The Court of Appeal concluded that the trial judge did not err in refusing the adjournment, as the evidence did not establish that the jury was not representative. The court held that the trial judge had correctly applied the relevant legal principles and had reasonably assessed the evidence before him. The appeal was thus dismissed.

The Court of Appeal confirmed that the trial judge's decision not to adjourn the trial was not an error and upheld the trial judge's ruling. The Court of Appeal did not order a new trial but affirmed the trial judge's decision. This decision highlighted the importance of a fair trial and the role of the jury in the criminal justice system. The Court of Appeal emphasised that the representativeness of a jury is a matter to be assessed on a case-by-case basis, and that the trial judge's decision on this issue is entitled to deference unless there has been a clear error of law.

DPP v Cavkic, Athanasi & Clarke (No 1)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established