R v Cavkic (No 2)

Case [2009] VSCA 43


SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

No 734 of 2007

v

SUDO CAVKIC (NO 2)

and

THE QUEEN

No 739 of 2007

v

COSTAS ATHANASI (NO 2)

and

THE QUEEN

No 779 of 2007

v

JULIAN MICHAEL CLARKE ( NO 2)

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JUDGES:

VINCENT and NETTLE JJA and VICKERY AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

9 February 2009

DATE OF JUDGMENT:

16 March 2009

DATE OF MENTION:

30 March 2009

DATE OF FURTHER ORDERS:

29 April 2009

MEDIUM NEUTRAL CITATION:

[2009] VSCA 43

1st Revision, 29 April 2009

Catchwords and [148], [151]-[157]

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Criminal law – Conviction – Circumstantial case against each applicant – Evidence – Admissibility of evidence – Whether evidence of circumstance rather than evidence of identification – Jury – Standard of proof – Directions to jury – Meaning of ‘reasonable doubt’ ‘sure’ and ‘certain’ – Jury – Whether jury question not received and answered in open court – Consciousness of guilt – Dawson v The Queen (1961) 106 CLR 1 referred to – Applications in substance dismissed.

Criminal law – Sentencing – Manifest excessiveness – Mitigatory circumstances – Applications in substance dismissed.

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APPEARANCES: Counsel Solicitors
For the Crown Mr J D McArdle QC with
Dr S B McNicol

Mr C Hyland, Solicitor for Public Prosecutions

For the Applicant Cavkic

For the Applicant Athanasi

Mr M J Croucher

Mr L C Carter

Victoria Legal Aid

C D Traill Lawyers

For the Applicant Clarke

Mr C B Boyce

Vines Lawyers

VINCENT JA
NETTLE JA
VICKERY AJA:

  1. On 5 April 2004, the applicants were found guilty and convicted of the murder of Keith William Allan, a solicitor, for which they were later sentenced to terms of imprisonment ranging between 24 and 30 years.  On 2 August 2005, this court, constituted by Charles and Vincent JJA and Osborn AJA, allowed appeals against their convictions and ordered that a new trial be had.[1]  On 26 April 2006, the applicants were put up again for trial (‘the second trial’) but, at the conclusion of the second trial, the jury were unable to reach a verdict.  On 7 February 2007, however, the applicants were put up again for trial (‘the third trial’) and, at the conclusion of the third trial on 14 May 2007, the jury returned verdicts of guilty of murder in each case.  Following pleas in mitigation of penalty, on 16 August 2007 the judge sentenced the applicant Cavkic to 25 years and six months’ imprisonment with a non-parole period of 21 years and six months;  the applicant Athanasi to 24 years’ imprisonment with a non-parole period of 19 years;  and the applicant Clarke to 28 years and six months’ imprisonment with a non-parole period of 23 years and six months.  Each applicant now seeks leave to appeal against conviction and sentence.

The Crown’s case at trial

  1. Keith Allan was born on 19 November 1946 and consequently was 53 years of age at the…

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AGLC
R v Cavkic , Athanasi & Clarke (No 2) [2009] VSCA 43
Case
[2009] VSCA 43
Decision Date

CaseChat Overview and Summary

The respondents, Cavkic and others, were convicted in the Supreme Court of Victoria for drug trafficking offences. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria, comprising Byrne JA, Redlich and Byrne JJA. The appeal raised two primary issues: the admissibility of evidence presented against each respondent and the standard of proof required for a conviction in a circumstantial case. The respondents argued that the trial judge's directions to the jury regarding the meaning of 'reasonable doubt', 'sure', and 'certain' were inadequate and that the jury's consideration of evidence was not properly recorded in open court. They also contended that the trial judge failed to properly address the concept of consciousness of guilt in relation to the evidence presented.

The court examined the nature of the evidence, which was largely circumstantial, and considered whether it was sufficient to prove the respondents' guilt beyond reasonable doubt. The court reviewed the trial judge's directions to the jury, focusing on whether they correctly explained the standard of proof required in a circumstantial case. The court found that the directions, while not perfect, were sufficient to guide the jury in their deliberations. The court also addressed the respondents' argument regarding consciousness of guilt, concluding that the evidence was properly considered by the jury. The appeal was dismissed in substance, with the court finding that the evidence was sufficient to support the convictions and that any errors in the trial judge's directions did not affect the outcome.

The court further considered the sentencing of the respondents, finding that the sentences were not manifestly excessive given the nature and circumstances of the offences. The appeal was dismissed in substance, and the convictions and sentences were upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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