DPP v Ivanovic
[2003] VSC 389
•15 September 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1457 of 2002
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| THOMAS IVANOVIC |
Ruling No. 3
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JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 September 2003 | |
DATE OF RULING: | 15 September 2003 | |
CASE MAY BE CITED AS: | DPP v Ivanovic | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 389 | |
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CRIMINAL LAW AND PROCEDURE – Murder – Non-calling by prosecution of police witness considered unreliable – No intervention by Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr W. Morgan-Payler Q.C. | Office of Public Prosecutions |
| For the Accused | Mr R. Richter Q.C. and Mr C. Rozencwajg | Theo Magazis |
HIS HONOUR:
Learned senior counsel, Mr Morgan-Payler, for the prosecution has submitted that the court should not give any indication to the prosecution that it considers the calling of Detective Sergeant Paul Dale in the circumstances of this case ought be done by the prosecution. Detective Sergeant Dale does not appear on the presentment as a witness. Mr Richter has said that he wished for Detective Sergeant Dale to be called by the prosecution but that he cannot compel the prosecution to call him. The question arises as to whether I should give the prosecution an indication that I consider the prosecution should call that witness.
I have read what was said on the bail application following the jury discharge on 5 June 2003 after p.511, particularly in the cross-examination and re-examination on that bail application of Detective Senior Constable McCann of the Homicide Squad. Mr Morgan-Payler has, when pressed by me, directly stated that he does not consider that the evidence of the witness is reliable. I think I should not say anything about it, except to say that on the material I have read, Mr Morgan-Payler's submission does not appear to be inappropriate, and accordingly I will make no such indication.
Mr Morgan-Payler has said that he will have the officer present at court to be called by the defence if, as is foreshadowed, the defence wishes to call him. The duty rightly said in R v Apostolides[1] to be a lonely duty, I am quite sure has exercised Mr Morgan-Payler's mind according to proper principle, and I will say no more about it.
[1](1984) 154 CLR 563.
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