DPP v Cavkic, Athanasi & Clarke (No 5)

[2004] VSC 121

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:	12 March 2004
DATE OF RULING:	12 March 2004
CASE MAY BE CITED AS:	DPP v Cavkic, Athanasi & Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 121

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RULING NO. 5

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 Mr Athanasi, and also Mr Drake for Mr Cavkic but elaborated relevantly to Mr Cavkic, have submitted that the evidence proposed to be called from the witness, Mr Strinavic, ought be excluded, first on the ground of irrelevance, and second on the ground of prejudice.

1. I am entirely unpersuaded that the evidence should be excluded.

1. First, on the matter of relevance, I consider the evidence is highly relevant.  It is cogent, and having observed the witness on the Basha inquiry I am not persuaded, although the submission was not made, that his evidence is such that on the basis of evident unreliability that should added into the equation.  The witness has deposed that a pistol was produced in Mr Athanasi's garage at a time relevant to the charge here, and there was a holster also.  At Ayr Street in the early hours of 29 May 2000 Mr Cavkic was in possession of a pistol and a holster.  On the voir dire Mr Strinavic readily stated (T.1950) the Cavkic pistol to be similar to that in the garage; and hesitatingly (T.1949-1950) stated that the imitation pistol (found a month after the alleged murder in Mr Athanasi's garage) was similar to the pistol he saw and handled previously in the garage.  Plainly Mr Strinavic's evidence is highly relevant to the crime of murder here charged.

1. The conduct of Mr Athanasi, in relation to a pistol which has been identified by Mr Strinavic as similar to Exhibit N, is relevant to the crime charged here and the conduct of Mr Cavkic at the scene of Ayr Court and the later discovery of the pistol hidden upon his person and at the police station is again relevant to this matter.

1. On the question of prejudice I consider that this material's cogency far outweighs any prejudice which might be said to flow to each of the two accused., Mr Cavkic and Mr Athanasi.

1. On Mr Drake's further argument of surplusage, the prosecution is not limited to simply one mode of proof.  Indeed as I understand it the phone calls are the subject of confession and avoidance in any event, such as the phone was not answered or could be viewed in some non incriminatory way. 

1. This evidence in relation to the pistol in my view is cogent, relevant and plainly should be admitted.

1. Accordingly I refuse the two applications to exclude it.