R v Andrakakos
[2002] VSC 489
•12 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: | 12 November 2002 | |
DATE OF RULING: | 12 November 2002 | |
CASE MAY BE CITED AS: | R v Andrakakos | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 489 | |
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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:
John Andrakakos, the father of the accused, has been called upon subpoena to give evidence on behalf of the Crown. Application is now made on his behalf under s. 400 of the Crimes Act 1958 to exempt him from giving evidence. The grounds of the application are that, first, if John Andrakakos were to give evidence it is likely that the relationship between him and the accused would be damaged and, secondly, it is harsh in any event to compel John Andrakakos to give evidence against his eldest son.
Sub-section (3) of s. 400 of the Crimes Act provides that I may exempt John Andrakakos from giving evidence if, but only if, I am satisfied that having regard to all the circumstances of the case the interests of the community in obtaining the evidence which it is proposed that he should give is outweighed by the likelihood of damage to the relationship between the accused and him, the harshness of compelling the proposed evidence or the combined effects of both of those matters.
Sub-section (4) of s. 400 provides that without restricting the generality of the expression “all the circumstances of the case” I may have regard to a number of considerations, including the nature of the offence charged, the importance in the case of the facts which the proposed witness is to be asked to depose to, the availability of other evidence and the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give evidence.
In the course of his evidence for the purposes of the application for exemption, John Andrakakos has expressed the view that if he were forced to give evidence there is a possibility of psychological damage and damage to his relationship with the accused which he put at a probability level of 50/50, but in the course of cross-examination he accepted the probability that if he were forced to give evidence the accused would understand that it was not a matter of his choice, and that there was a fair chance that he would continue to see the accused.
The application for exemption is opposed by the Crown. It is said that the evidence which it is proposed that John Andrakakos should give is of real significance to the Crown case, in that it demonstrates that the accused, with one other, returned to his home at 27 Murdo Road, Clayton only a matter of minutes after the time at which fire was first observed to be coming from the deceased's premises.
It is submitted on behalf of the Crown that that evidence may well be evidence from which a jury could draw or with which it would be helped to draw an inference that the accused was involved in the infliction of the injuries which caused the death of the deceased or at least was complicit in their infliction by another.
It is also submitted on behalf of the Crown that there is no other source from which evidence of the time of return to Murdo Road is available and that the evidence is required, perhaps, to rebut answers given by the accused to police in the course of his record of interview that he had returned home at approximately 1 am in the morning and later that he had been at the deceased's premises only for a period of approximately two hours.
It is said on behalf of the Crown that the evidence is important to the case which it seeks to advance in demonstrating the changing positions adopted by the accused from time to time and thus, as I would apprehend it, that he has, when he thought it was in his interests to do so, told lies.
Finally, it is contended on behalf of the Crown that when one looks at the evidence which has been given as to the possible effect upon the relationship between John Andrakakos and the accused, if John Andrakakos is compelled to give evidence, it is unlikely that there will be a substantial detrimental affect.
I accept that it is a harsh thing to compel a father to give evidence against his son. I also accept that in most circumstances the fact that a father gives evidence against his son may create a real likelihood of damage to the relationship between them.
If therefore there were nothing more to it than that, or perhaps even if there were, but the matters in issue were not as serious as they are, I would be inclined to allow the application. When, however, I have regard to the nature of the offence charged, which is to say murder, and to what is said on behalf of the Crown, is the importance to the case of the facts which the proposed witness is to be asked to depose to, and to the lack of other evidence to establish those facts, and too to what I suppose is a fair chance that despite the giving of evidence the relationship between John Andrakakos and his son will survive, I am not inclined to allow the application.
I consider that having regard to all the circumstances of the case, including those to which in these brief reasons I have referred, the interest of the community in obtaining the evidence of the proposed witness is not outweighed by any of the considerations referred to in paragraphs (a), (b) and (c) of sub-s. (3) of s. 400. For those reasons, the application for exemption is refused.
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