DPP v Cavkic, Athanasi & Clarke (No 4)

[2004] VSC 120

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 March 2004
DATE OF RULING:	9 March 2004
CASE MAY BE CITED AS:	DPP v Cavkic, Athanasi & Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 120

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RULING NO. 4

Criminal law – Trial – Murder – Evidence - Admissibility

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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. Learned leading counsel, Mr Allen, for the second accused, Mr Athanasi, has most helpfully made submissions in relation to proposed evidence of Mr Kypros Kypri, a witness about to be called, constituted by a statement by him made at the Grafton Police Station on 8 June 2000, and elaborated in an interview at that place and on that date and which are recorded in the committal evidence respectively at 522 and 532.

1. In essence the material the subject of impugnment by Mr Allen is this.  Mr Kypri stated that in Queensland, after a telephone conversation to which Mr Athanasi was a party, (D.536):  "Con then told me that him and Julian were doing some business together ... Then Con tells me Julian gave him about $50,000.  When I asked Con ‘Why did he give you $50,000?’ Con just said to me 'It was for drugs'."  And in a later conversation (D.522):  "Don't worry about the money you have given me when you are going to give me the rest of the money it will be done" (sic).  And in the interview (D.537):  "Are you going to give me the rest of the money, it will be done" (sic).

1. Mr Allen's primary submission is that the material is not probative of the crime charged, the murder of Mr Keith Allan.  He elaborated that submission by saying it is speculative as to what the payment of the $50,000 may properly be referable to.

1. I am unpersuaded by Mr Allen's submission.  I consider that when all the material that is relevant and admissible is looked at, it is not speculation but rather a matter for proper jury judgment, bearing in mind the onus of proof, as to its use as contended by the Crown.  The Crown contends that there was payment made byMr Clarke to Mr Athanasi to arrange the killing of Mr Allan and that this is an admission by Mr Athanasi directly relevant to that central matter in the prosecution case.

1. I think Mr Allen would be on much stronger ground if Mr Athanasi had not been in the remote Ayr Street at 2.20 a.m. on a Monday morning with Mr Cavkic, in the immediate presence of Mr Allan's Mercedes, which had within it two shovels and fresh soil and, so the Crown says, Mr Allan's blood on Mr Cavkic and Mr Cavkic in possession of a loaded pistol, combined with a pattern of phone calls that night between Mr Athanasi and Mr Cavkic and also Mr Athanasi and Mr Julian Clarke which the prosecution also relies upon contextually.

1. Given that fortuitous or unfortunate circumstance, depending upon the viewpoint, of the finding of Mr Athanasi in the vicinity of Mr Cavkic and the Mercedes with its appurtenances at Ayr Street, I consider that this conversation, the subject of submission by Mr Allen, is relevant analytically speaking and is probative.  The prosecution has put that it is highly probative.  It is sufficient for my purposes of ruling to say that it is probative.  I certainly do not consider it is, to use the various epithets of their Honours in R v. Stephenson[1] "slight" or "tenuous".  I consider it is a matter of substance.

   [1](1976) VR376 at 381.

1. It is the prosecution case that Mr Julian Clarke arranged for the killing of Mr Keith Allan by contracting Mr Athanasi and paying him, and this is an admission that Mr Clarke paid Mr Athanasi $50,000, "And when you are going to give me the rest of it, it will be done" and I consider that is relevant and admissible.

1. Mr Allen, if his submission as to relevance and probativeness was unsuccessful, as it is, then submitted that the evidence is surplusage because there is material which is not in dispute that various sums of money were paid by Mr Clarke to Mr Athanasi and thus the admission of payment of $50,000 is not necessary to the prosecution case.  This submission goes to both the question of probativeness and also the question of the probative - prejudicial balance.

1. To that argument, Mr Hillman has submitted that the flow of moneys thus far established by the prosecution is simply that cheques were drawn on the Keith W. Allan solicitor's trust account by Mr Clarke and paid into the Athanasi bank account.  Mr Hillman has submitted, and I agree with him, that this material goes beyond the mere fact of payment because it does not refer to or specify any legitimate transaction, but rather "gave" him the $50,000; and it therefore has a quality beyond that which presently is in the prosecution case and has relevance to possible explanations which hereafter may be advanced during this trial.

1. Finally, Mr Allen submitted that the prejudice outweighs the probative value because, of course, there is harm to the accused, Mr Athanasi, in any reference to drugs, including being paid $50,000 for drugs.  The jury will decide whether it accepts that explanation if led, bearing in mind that the onus of proof remains at all times upon the prosecution, but I do not consider that the reference to drugs in the context of this most serious murder trial would be such as to prejudice the accused's fair trial, nor is it such that it would outweigh its relevant probative value.

1. Accordingly, I rule that the evidence is admissible.

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