DPP v Cavkic, Athanasi & Clarke (No 2)

[2004] VSC 118

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:	9-16 February 2004
DATE OF JUDGMENT:	17 February 2004
CASE MAY BE CITED AS:	DPP v Cavkic, Athanasi & Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 118

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RULING NO. 2

Criminal law and procedure – Trial – Murder – Evidence – Admissibility – Police questioning of accused – Whether accused was suspected or ought reasonably to have been suspected of offence.

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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:

1. As to the evidence of police questions of Mr Cavkic and his answers thereto the subject of the voir dire, I consider that evidence is admissible.

1. I consider that at the time of those questions and answers, Mr Cavkic was not suspected by the relevant officers of having committed the offence of murder of Keith Allan nor ought he reasonably have been so suspected.

1. The evidence is otherwise lawfully obtained and is admissible.

1. As to the evidence of the utterances of Mr Athanasi at the Homicide Squad Office, St Kilda Road on the day of 29 May 2000 and the subject of the voir dire, I accept the truthfulness of the evidence of Senior Sergeant Ross generally and as to his (Mr Ross') state of mind.

1. However, I consider the prosecution evidence is insufficiently cogent to affirmatively establish that Mr Athanasi was told his position as to whether he was required to remain at the Offices or was free to leave.

1. It has not been affirmatively established that his status - as to whether he was required to remain or was free to leave - was properly communicated to him during the day. In the context of Mr Athanasi having been arrested that morning in North Sunshine and brought to the Homicide Squad Offices, I find that lack of communication of sufficient seriousness to warrant the exclusion of the video recorded formal interview.

1. Further, I exclude the witness statement made by Mr Athanasi earlier that day, because again I find the prosecution evidence is insufficiently cogent to establish precisely what Mr Athanasi was told at relevant times prior to that statement and that deficiency renders the statement unsafe to admit.

1. Accordingly in the exercise of discretion I exclude all the evidence of Mr Athanasi's responses and the questions to him at the Homicide Squad offices on 29 May 2000, that is including the so called witness statement and including the formal record of interview.

1. There is a substantial amount of material which counsel most helpfully has placed before the court and I would like to reduce my reasons to coherent expression in relation to that detailed material and I shall do that at a convenient early time during the trial.

1. However, I have stated my rulings so that the parties know where they stand and prior to empanelment of the jury.

1. Accordingly, the evidence in relation to Mr Cavkic is admissible.  The evidence on the 29th in relation to Mr Athanasi is inadmissible in whole.

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