R v Andrakakos

[2002] VSC 517

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 517

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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:

1. Application has been made by Mr Montgomery on behalf of the accused that I should discharge the jury for three reasons:  first, it is said that when I spoke to the jury about the inferences which it was open to them to draw, I did not make sufficiently plain that they should not draw an inference if there were any other inference reasonably open that was consistent with innocence;  secondly, it was said that when I spoke to the jury about the appropriateness of drawing inferences as to the existence of an intention to kill or inflict really serious injury, I had transgressed the strictures imposed by the High Court recently in Dyer's case against a trial judge tendentiously leading a jury towards the conclusion which it should draw;  thirdly, it was said that although it was thought that I had more or less accurately expressed the law referrable to the three ways in which the Crown puts its case I had, when later expounding upon the law in an endeavour to relate it to the evidence, caused confusion by suggesting to the jury that in that part of the Crown's case which is dependent upon common purpose, as opposed to extended common purpose, I had suggested that it would be enough in order to find guilt that it was perceived by the accused that there was a possibility that really serious physical injury would be imposed.

1. I have looked again at the notes of what I said.  It appears to me, although I stand to be corrected, that when I spoke of the propriety of drawing inferences, I did in fact say that the jury should not draw an inference unless it considered that it was the only proper inference open and that it must be satisfied beyond reasonable doubt that no reasonable inference open on the evidence other than that it was intended to cause death of Keith Herman or intended that really serious physical injury should be inflicted upon Keith Herman.

1. As I say, I stand to be corrected because I am yet to see the transcript of exactly what I said as opposed to the notes from which I worked, but I do not think there is any harm in what I said which cannot be corrected, if indeed it needs to be corrected, by further appropriate direction in the course of the charge.

1. Secondly, as to the question of leading the jury, again I stand to be corrected because I have not seen the transcript, but at least the notes from which I worked put the matters upon which the jury should reflect in drawing inferences about intention in terms which were based upon what was said in Dyers.  As I say, I stand to be corrected but again I do not think that any harm has been caused which cannot be corrected if it needs to be corrected by further exposition.

1. Finally, on the question of whether or not I have caused confusion in expounding upon the principles applicable to the first two ways in which the Crown case has been put, I can only say that I do not consider that I have, but rather maintained a distinction between them at all points except at the point where, as needs to be observed, there is commonality to an extent between them in the elements which are involved and thus as to the evidence to which the jury must look in order to decide upon them.

1. For those reasons the application for discharge is refused.

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