R v Andrakakos

[2002] VSC 478

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:	7 November 2002
DATE OF RULING:	7 November 2002
CASE MAY BE CITED AS:	R v Andrakakos
MEDIUM NEUTRAL CITATION:	[2002] VSC 478

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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. This morning, immediately after I had completed delivering to the jury some opening observations as to the task that they would be performing in this trial, it was submitted on behalf of the accused that the jury should be discharged.  It was contended that I had said to the jury that counsel for the accused would in his defence response to the Crown’s opening address, direct attention to what will be said by the accused about the evidence.  It was submitted that I had thereby created an expectation in the jury that the accused would be saying something – would be giving evidence – and that if the accused did not, an unfair inference could be drawn against him;  despite whatever might later be said in the course of the trial. 

1. Because the time was then close to the luncheon adjournment I adjourned in order that the transcript of my opening observations could be obtained.  Now that it has been obtained, it can be seen that what I said to the jury was not that counsel for the defence would direct attention to what would be said by the accused about the evidence, but rather that the job of counsel for the defence would simply be to identify those of the issues raised by counsel for the Crown in the course of his opening address and to direct attention to what would be said on behalf of the accused about those issues.

1. Notwithstanding that difference, it is now still contended on behalf of the accused, that the jury ought be discharged. The way in which the matter is now put is that it is open to the jury, on the basis of the words which I used, to conclude that evidence will be led on behalf of the accused. It is said that I have, therefore, cast on the defence an onus, or at least suggested to the jury that there is an onus requiring the defence to lead evidence on behalf of the accused. It is contended that I have thereby breached sub-s. (3) of s. 399 of the Crimes Act 1958, which provides:

“That a failure of any person charged with an offence to give sworn evidence shall not be made the subject of comment to the jury by either the prosecution or by the presiding judge.”

1. It is further submitted that I have thereby reduced the benefit of the accused’s right to silence, of which so much as recently been said by the High Court in Azzopardi v The Queen[1] and in Dyers v The Queen[2].

   [1](2001) CLR 50

   [2][2002] HCA 45

1. In my opinion it is plain that I did not say to the jury, either in terms or in substance, that defence counsel will direct attention to what would be said by the accused about the evidence.  In my opinion it is equally plain that what I said to the jury was not in terms or in substance such as to open to them that evidence will be led on behalf of the accused.

1. Examination of the passage of the transcript about which complaint is made discloses the clear distinction drawn between what will be said on the one hand by way of submission and what will be led by evidence on the other.

1. I do not consider that the observations which I made to the jury in any way infringed sub-s. (3) of s. 399 of the Crimes Act.  I do not see in the terms or in the substance of what I said any comment to the jury as to the failure of the accused to give sworn evidence, or any suggestion from which it might be inferred, or somehow be taken that there was comment directed to the possibility of failure of the accused to give sworn evidence, or indeed anything upon which, or from which inference might be drawn later if sworn evidence is not given, that there was some reason to be concerned about the absence of that evidence. 

1. In the circumstances the application for the discharge of the jury is refused.

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