R v Andrakakos

[2002] VSC 474

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:	6 November 2002
DATE OF RULING:	6 November 2002
CASE MAY BE CITED AS:	R v Andrakakos
MEDIUM NEUTRAL CITATION:	[2002] VSC 474

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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 is raised in advance of the Crown’s opening of its case to evidence that, some two days after the day on which the accused Andrakakos is alleged to have murdered the victim, he was involved in a theft at a video store in company with the woman Arkan, with whom he is alleged to have undertaken the murder.

1. The Crown submits that the evidence is relevant and probative to refute any suggestion that Andrakakos may advance that he was emotionally overborne by Arkan during the events surrounding the death of the deceased.  It is said that evidence that Andrakakos was prepared some two days after those events to engage with Arkan in a theft of a video store is evidence from which the jury would be entitled to infer that he had not been emotionally overborne on the previous occasion.

1. It is also submitted on behalf of the Crown that the evidence ought go to the jury as evidence that negates any possibility that Andrakakos was revolted by and sought to distance himself from the events on the night of the deceased’s death.

1. In opposition to the admission of the evidence, it is said on behalf of Andrakakos that there is no necessary or, indeed, any logical connection as between Andrakakos’ state of mind on the night of the death of the deceased and Andrakakos’ state of mind some two days later, in circumstances radically different to those which obtained at the time of the death of the deceased.  It is said, moreover, that the evidence would be highly prejudicial to Andrakakos even though, when logically analysed, it shows no more than that Andrakakos is one who was willing to engage in theft. 

1. I accept the submission of the Crown that the evidence that Andrakakos was prepared to engage in the theft at the video store, only two days after the death of the deceased, is relevant to Andrakakos’ state of mind at the time of the death of the deceased.  As a matter of logic and common sense one can better infer that Andrakakos was not emotionally overborne on the night of the death of the deceased if one knows that he was prepared to engage with Arkan in a theft only two days later.  So much the more so might one be prepared to infer that Andrakakos was not revolted by what occurred on the night of the death of the deceased if one knew that he was prepared to continue with Arkan in subsequent activities.

1. That said, it appears to me that the break of two days between the death of the deceased and the theft at the video store, and the strikingly different circumstances in which the two events occurred, makes the connection significantly less than it might have been if the circumstances had been similar and the events had been close together.  Moreover, it is obvious that the evidence would be highly prejudicial to the accused.

1. In the circumstances, I consider that the prejudicial effect outweighs the probative value for which the Crown contends and, accordingly, I accede to the application for the exclusion of the evidence. 

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