DPP v Ivanovic

[2003] VSC 396

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. 9

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2003
DATE OF RULING:	22 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 396

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CRIMINAL LAW – Murder – Final address by prosecution – Whether proposed comment speculative or permissible.

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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:

1. Learned senior counsel, Mr Richter, has submitted that certain comments which he anticipates might be made by the learned prosecutor should not be made because they are speculative.  I do not know what comments the learned prosecutor will make, but there is a particular comment which has been the subject of submission by Mr Richter.  It is whether there is any evidence upon which it is open to the jury, properly instructed and eschewing speculation, to conclude that the deceased saw the gun before he, the deceased, punched and knocked over the accused.  It is a rational viewing of the video - and I make no comment on this, because the jury decides the facts, not me - that the conduct including physical actions of the deceased before striking the accused can be divided into two stages.  The first is that he was standing still and gesturing down the road, gesticulating to the accused, and apparently yelling or shouting at him.  The second is that he abruptly and suddenly leant forward and knocked the accused over.  The video also shows the accused placing his hand on the area where the pistol was beneath his clothing as he walked directly up to the deceased.  In the light of all those circumstances, in my view it is open for the jury to conclude that the reason the deceased changed from stationary to forward is that he saw what was about to happen, namely that a gun was about to be pointed at him.

1. As to the significant circumstance that the young cyclist, Mr Armatolos, did not see the gun before the punch, in my view it is open to the jury to say that because of the position of Mr Armatolos relative to where the gun was, and the actions of the accused in relation to it, Mr Armatolos did not see the gun because he was at a 45 degree angle, blind-sided to the gun, as well as being in motion on his bicycle at 40 ks; whereas the deceased was standing still, close to and facing directly on to the accused and thus would have a distinctly better view of the area of the gun and the actions of the accused in relation to it than would Mr Armatolos.

1. Accordingly, I consider that the comment, if it is going to be made by Mr Morgan-Payler, is not speculation, but open on the evidence.  I do not propose making any comments myself.