R v Andrakakos

[2002] VSC 490

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:	12 November 2002
DATE OF RULING:	12 November 2002
CASE MAY BE CITED AS:	R v Andrakakos
MEDIUM NEUTRAL CITATION:	[2002] VSC 490

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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. Objection has been taken to questions sought to be asked by Mr Leckie on behalf of the Crown of a Detective Senior Constable Trichias as to whether a conversation, which is referred to in his deposition as having been held with the accused's father, John Andrakakos, was held in the presence of the accused, Peter Andrakakos.

1. The bases upon which the objection is made are:  first, that any answer which would be given to the question would be hearsay;  and, secondly, that counsel for the accused is taken by surprise, in that there is no hint in the deposition or in the evidence of any of the other police witnesses who are referred to in the deposition that the conversation was held in the presence of the accused.

1. Mr Leckie seeks to adduce the evidence because he says that although he had proposed that the evidence would be given by John Andrakakos in the terms set out in John Andrakakos' deposition, when John Andrakakos gave evidence he failed to come up to proof in a way which Mr Leckie could not anticipate.

1. Plainly the evidence is relevant, and important to the establishment of the case which the Crown seeks to make.  I nevertheless propose to accede to the objection for four reasons.

1. First, the evidence is hearsay and the only basis apparently on which it might be received is that, because the conversation was had in the presence of the accused, it is significant for the reaction, or lack of reaction which it evoked from the accused.  It is, however, apparent from what has already been said that there is considerable uncertainty as to whether the accused would have heard what was said, or said to have been a part of the conversation, and thus there must be uncertainty as to the response which one might think it ought to evoke, if heard.

1. Secondly, it appears to me to be plain that counsel for the accused is taken by surprise, if not severely embarrassed by the fact that it is now proposed to adduce this evidence out of the mouth of Detective Senior Constable Trichias when no prior warning of an intention to do so has been given, and even though it might have been given yesterday when John Andrakakos gave his evidence.

1. Thirdly, although I acknowledge the force of what Mr Leckie says about being taken by surprise when John Andrakakos failed to come up to proof, I note that no application was made to me, as it might have been, pursuant to the rule in R v Thynne[1].

   [1]1977 VR 98

1. Fourthly, given the limited probative value of the evidence, bearing in mind the uncertainties to which I have already referred, and the high prejudicial effect upon the accused, I consider that the prejudicial effect outweighs probative value and thus in the exercise of my discretion, that it should be excluded.

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