R v Andrakakos
[2002] VSC 518
•14 November 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1465 of 2002
| THE QUEEN |
| v |
| PETER ANDRAKAKOS |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2002 | |
DATE OF RULING: | 14 November 2002 | |
CASE MAY BE CITED AS: | R v Andrakakos | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 518 | |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie with Miss G. Cannon | Solicitor for Public Prosecutions |
| For the Accused | Mr J. Montgomery | Theo Magazis & Associate |
HIS HONOUR:
Mr Montgomery, on behalf of the accused, has made application that the jury should be discharged. Mr Montgomery submits in support of that application that in charging the jury I adopted a course of putting the Crown case repetitively and extensively in a fashion which has never been seen before.
He submitted that by the extensive repetition to which he referred I had laid a path towards a conclusion which was likely to lead the jury to adopt a view which I espoused. He contended that I had made extensive comment on the facts referred to and relied upon by the Crown and made only peripheral reference to the facts upon which the accused relies.
Finally, he submitted that having regard to those considerations that the charge taken as a whole was in substantial respects unfair, producing a high degree of necessity that the jury should be discharged.
Mr Leckie, on behalf of the Crown, opposes the application. He submits that what was done in the course of the charge amounted to no more than relating salient facts from the evidence to the concepts of law which had been identified, and that it was wrong to suggest that I had in any way led the jury to the conclusion, especially having regard to the warnings which I repeated on a number of occasions, that the questions of fact, which it falls for the jury to decide, are questions for them alone upon which they are to ignore anything which I may say, and that they pay to me regard only as to matters of law.
In my opinion, the contents of the charge did not excessively, if at all more than necessarily, repeat the elements of the Crown's case. The structure of the charge was one of first identifying the elements, and then seriatim relating the elements to such of the evidence as appeared to me to be pertinent both to the way in which it was put by the Crown and as to the way in which it was sought to be met on the behalf of the accused.
I daresay that there are other ways of identifying the issues which arise between the Crown and the accused in a criminal proceeding and relating them to the evidence condensed to a summary form capable of rapid absorption by a jury.
I must say, however, that as at present advised, I find it difficult to imagine any other way more effective or fair than to identify the propositions of law as they have arisen as a consequence of the Crown's contentions and the accused's answers, and then under the headings of each of them attempting to isolate the evidence to which the jury may care to have regard coupled with copious warnings that the evidence to which they should have regard is a question for them and them alone.
Moreover, I reject the submission that I was less than fair in failing to accord to the case advanced by the accused sufficient reference to the facts or contentions upon which the accused relies. Upon the contrary, it seems to me that I may have perhaps gone too far in repeating time and again the burden which is upon the Crown to prove its case beyond reasonable doubt and repeating time and again, at least with respect to some issues, the submissions that were put on behalf of Mr Andrakakos by Mr Montgomery.
In the result I do not consider that the charge has been unfair or at least that there is a high degree of necessity that the jury be discharged, and accordingly the application for discharge is refused.
Mr Leckie, on behalf of the Crown has raised a number of exceptions to the charge of a lesser nature. First, Mr Leckie submitted that when I referred to the differing versions of the reason given by the accused for the cut to his left hand I failed to make it clear that the version which he gave to Dr Teasdale was that he was cut by a knife.
Mr Leckie said that because I had characterised the version given to Dr Teasdale as one of having been mugged, I had failed to make sufficiently plain to the jury that this was the only occasion on which the accused had admitted that he was cut by a knife. I suppose it is open to take the view that the mugging, or at least I should say a mugging is not necessarily synonymous with a cut by knife in the course of an attack by another.
I take the view, however, that having at the outset of the charge, and on a number of other occasions during the course of the charge, emphasised and re-emphasised that what I said about both the evidence and about the submissions of counsel was of but a summary and incomplete nature, the jury should have regard to the totality of what was said and not necessarily to the way in which I might characterise it.
If it were possible to achieve perfect fairness in a process such as this I would be inclined to recall the jury, but I take heed of what has been said by
Mr Montgomery in opposition to the application to recall them to address them on the point, namely, that to do so stands a high chance of elevating the significance of the point above the level which properly it deserves.
Mr Leckie next submitted that in charging the jury as to the effect of the accused's response to the knife attack waged by Arkan upon the deceased, I had elided evidence, or at least answers given by the accused at two different places in the record of interview and thereby suggested to the jury in a way which was either not open or at least not compelled by the evidence that the accused's response to the knife attack was not only that Arkan was nuts but that they should get out of the place quickly.
To be fair, I think there is something in what Mr Leckie says. There is an elision of the two passages of the evidence in the substance of what I said to the jury. There is a risk and a significant one, however, that if I call back the jury to address on a point such as that, it will raise the matter above the significance which it deserves in the totality of the case which was advanced by the Crown.
Moreover, there is for the Crown the protection, I think established on several occasions during the course of the charge, by reason of the warnings given to the jury on each of those occasions that they should have regard to the totality of the evidence, and to the totality of submissions and not to the summary and incomplete things which I might say about them in attempting to assist them in their comprehension of them. I am therefore not inclined to redirect the jury on that issue
The final criticism made by Mr Leckie of the charge was that I failed adequately to emphasise when dealing with the question of whether the accused had manifested a disengagement from the joint enterprise, or common enterprise, the significance of the accused's failure to seek help for Keith Herman, at least by a telephone call to the police or emergency authorities.
I do not consider that there is any real substance in that criticism. Mr Leckie made plain yesterday in the course of his submissions, the way in which he relies upon the failure of Andrakakos to do the slightest thing to assist the accused at a time of immense need. It cannot, in my opinion, have failed to impress the jury. Moreover, an issue has been raised by reason of Mr Montgomery's submissions that the accused was under no duty to assist the victim as opposed to resisting participation in a common enterprise which had the result of inflicting injury upon him.
I took the view and persist in it that to raise directly with the jury possible courses of action which the accused might have undertaken, such as telephoning the police or emergency authorities, was likely to confuse in their minds the question of whether he had disengaged with the question of whether he owed any duty to assist, and for that reason I avoided it.
I am not now disposed to change my view despite what Mr Leckie has said and to re-direct upon the point.
Finally, I should say that Mr Leckie, not so much by way of criticism, but more, I think, by way of attempted assistance, suggested that I may not have made sufficiently plain in the course of the charge to the jury that the evidence upon which they are to act, at least in the case of interviews or evidence of conversations, is evidence of the answers given rather than of any questions which are asked.
I am grateful to him for bringing my attention to the point but I consider that there is not cause to be concerned. I mentioned the matter at the outset of the trial to the jury, in my opening observations, and made reference again to that warning early in my charge today. And I am strengthened in the view that nothing should be done about it by the submissions made on behalf of the accused by Mr Montgomery that, at least in his opinion, what I said upon the point was for the purposes adequate.
For those reasons, gentlemen, I do not propose to re-direct on those points.
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