DPP v Cavkic, Athanasi & Clarke (No 6)

[2004] VSC 122

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:	17 March 2004
DATE OF RULING:	17 March 2004
CASE MAY BE CITED AS:	DPP v Cavkic, Athanasi & Clarke
MEDIUM NEUTRAL CITATION:	[2004] VSC 122

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RULING NO. 6

Criminal law and procedure – Trial – Murder – No case submission.

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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. I am satisfied on the criteria in May v. O'Sullivan[1] that on the evidence as it stands, the accused Mr Athanasi, could lawfully be convicted on the count of murder.

   [1](1955) 92 CLR 54.

1. I have been most assisted by Mr Allen's submissions, both in writing and orally.  However, I am unpersuaded by them. 

1. I would like to reduce my reasons to precise expression as this matter involves expression of proper drawing of inferences.  Essentially, if Mr Athanasi had not been found at Ayr Street, Laverton North at 2.20 a.m. in the presence of Mr Cavkic and the empty Mercedes with its attendant circumstances, Mr Allen's submission would have been a strong one.  But it is unsustainable in view of that epicentre of the prosecution case and the proper inferences which can be drawn in relation to it, together with the other matters relied upon by the prosecution in relation to Mr Athanasi.

1. I will give my reasons in written form at a convenient early time.