R v Papadimitriou
[2015] VSC 384
•30 July 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2015/0097
IN THE MATTER of the Bail Act 1997
And
IN THE MATTER of an Application for Bail of:
| ANDONIS (Also known as Tony) PAPADIMITRIOU |
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JUDGE: | KING J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 July 2015 |
DATE OF JUDGMENT: | 30 July 2015 |
CASE MAY BE CITED AS: | R v Papadimitriou |
MEDIUM NEUTRAL CITATION: | [2015] VSC 384 |
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Office of Public Prosecution |
| For the Accused | Mr N Papas Q.C. Mr A Strauch | Patten Robins Lawyers |
HER HONOUR:
This is an application for bail on behalf of Andonis Papadimitriou who is charged with one count of murder. It is alleged that on 10 July 2015 the applicant murdered the deceased man, Donato Galgano, a neighbour in the Preston area.
The applicant who resided with his parents at 435 Murray Road, Preston lived near to the deceased who resided at Unit 3/413 Gilbert Road, Preston, a unit on the corner of Gilbert and Murray Roads, Preston.
The accused operated a barber shop at 378 Capital A, Gilbert Road, Preston —the opposite corner to the residence of the deceased. The parties were well-known to each other, initially there having been a period of friendship, but that had descended quite some time ago into a degree of animosity between the parties.
The deceased was a tall, quite obese man, in his late 60’s who from the material available also had some mental health issues and would, in all likelihood, be described as a ‘pest’ or a ‘nuisance’ to people within the area. He was the subject of a number of intervention orders which had been taken out against him. He was also the protected person in respect of a number of intervention orders taken out by him or on his behalf. The applicant and the deceased had cross-intervention orders applying to each other. There is a relevant history to the relationship between the applicant and the deceased, which will undoubtedly be explored at the time of the trial.
On 10 July 2015, there was an altercation at around 1pm between the applicant and the deceased and it would appear rocks were thrown on that occasion. Subsequent to that time, from about 4.00 pm onwards this altercation between the applicant and the deceased unfolded. Numerous calls were made to triple 000 by the deceased. At the time there were also four persons who were in a position to see some of the altercation and the consequences of what occurred between the applicant and the deceased between 4.00 pm and 4.45 pm. There was also very relevant CCTV footage available from outside the barber shop premises of the accused and a less relevant CCTV footage from the home premises of the accused’s parents, which covered, in totality, the areas in which the altercation between the applicant and the deceased took place.
Evidence was given before me by Constable Miranda Stubbs and Detective Michael Howard and not disputed via cross examination. That evidence established that the deceased had made three 000 calls, prior to the altercation. Trying to combine the evidence before me chronologically, it appears that the first relevant call was at 15.58 where the deceased sought an Italian interpreter, so that he could explain the problem; that call was terminated by the recipient. The deceased rang back shortly thereafter at 16.02, making a similar request for an Italian interpreter, and receiving the same response, in that the call-taker also terminated that call. The CCTV footage demonstrated that at 16.08 and again at 16.12 there were two incidents of rock throwing captured on film, both at the barber shop premises of the accused, by the deceased, as I understand it. At 16.17, a further triple 000 call is made by the deceased to the police, at that time an interpreter was available for the deceased who spoke Italian and he told the interpreter, amongst other things, that Tony Papadimitriou, the applicant, had broken his window, that the applicant was crazy and that he wanted the police to attend. At 16.38 on the CCTV, the applicant is seen leaving the barber shop, running down and across Murray Road, pausing on the median strip, due to the traffic, and then continuing over to the other side of the road in Murray Road, where the victim was standing. Both the victim and the deceased disappear from view, as a result of trucks passing between the camera and those persons, for approximately 10 seconds. The accused is then seen to run from the location where the deceased is standing, and into his parents premises.
The four eye-witnesses, being two in vehicles travelling along the road, and two walking in the footpath areas, are seen in the CCTV. None of them have any contact with the deceased. One-and-a-half-minutes after this has occurred, at approximately 16.40, the deceased drops to the ground; no other persons have approached him during that time. A person goes to his aid and he dies at the scene. He has one stab wound which has penetrated his heart. The deceased is observed to have picked up a saucepan he had with him, that was either dropped or been thrown by him, as well as a mobile phone and used the saucepan to smash the mobile phone, prior to collapsing. There is approximately one and half minutes that have elapsed, between the applicant approaching the deceased, and the deceased falling to the ground
The applicant has returned, as indicated, to his parent’s premises, appeared to speak to his parents, gone inside, returned outside carrying a long black stick which, on the information available to me, turned out to be some form of walking stick, walked out to the front of the premises looked towards where the deceased was and then returned inside the premises.
He was subsequently arrested by the police and interviewed, and during that interview the applicant admitted to having been involved in a confrontation with the deceased, but denied stabbing him. Statements taken from the four eye-witnesses indicate that although they all saw the altercation in some form, none actually saw a knife at that time, but equally they say no other person approached the deceased, to their observations — all of which is consistent with the CCTV footage.
The eye-witnesses have also described different things, that each believed was possibly being held in the applicant’s hand, including that it was paper, material, metallic object, none of which particularly demonstrate the possession of a knife by the accused. Upon searching the premises, a knife was found on the top of a tall boy, in the bedroom of the applicant. There was also a fold up knife in the pocket of the deceased. Both have been tested, but preliminary testing only with haemostixs, which has indicated the presence of blood. Further forensic testing is required in respect of each of those items.
Having heard all of the evidence, I believe that the Crown have a strong case that the accused was the killer of the deceased man, the only other alternative being that the deceased has stabbed himself in the heart, but there will undoubtedly be questions to be determined at trial as to intent, self-defence and matters of that nature.
Currently, the DNA report in respect of the knife, the autopsy report on the deceased, and the copy of the CCTV footage are outstanding and are not anticipated to be ready by the time of the required date of service of the hand-up brief. The informant, in her evidence before me, indicated that she expected to have that material by the time of the committal mention in this matter. Thus there should be no delay with the proceedings being heard by way of committal.
There are additional statements which need to be obtained, and to which the informant is attending. Currently, the family and friends of the accused have not made any statements, and have stated an unwillingness to make any statements. The informant is aware of her right to request that those persons be compelled to make a statement, or give sworn evidence, and that is a process that will, if necessary, be utilised.
The accused must demonstrate exceptional circumstances before bail would be granted in this case. Exceptional circumstances can be demonstrated by a combination of factors, that much is well-established law. On the material before me, I have no concerns that the accused is a flight risk, or that he would necessarily fail to appear to answer his bail. Those are all matters that could be ensured by reporting and surety conditions.
The issue for determination is whether or not the accused has demonstrated exceptional circumstances.
The applicant has relied upon a combination of factors, being firstly, the fact that he is a self-employed barber whose business is unable to function without him being present and he may well lose that business in its entirety, if he is unable to be released and continue to run it. The evidence before me is that this business was struggling and was often closed, that it had some debts, but it was still an on-going business. If the business is a viable profit making business, then a barber should be able to be employed, on a temporary basis, to maintain that business until the applicant is either released or an alternative disposition occurs. It is unfortunate that a number of people charged with offences are in the position of losing their employment, or single person occupations, as a result of being refused bail, but it is far from an exceptional situation, and one that in this case is capable of being overcome, if it is a viable business.
The second factor upon which the applicant relies is his father’s circumstances, relating particularly to his health. His father is currently suffering from acute leukaemia, post stroke complications and depression, has limited mobility and requires frequent treatment and monitoring at the Alfred Hospital. In the affidavit the applicant swore that it was necessary for him to drive his father to the appointments, as well as to assist him with the appointments because of his limited language skills. Counsel submitted that as he lives at home with his parents, he is the person who is logically and physically, the one upon whom they rely.
In relation to that, the applicant has two siblings; a sister and brother, both of whom are able to assist their father in respect of both appointments at the Alfred and language skills. The applicant’s mother also drives, although he deposes that she has equally limited language skills. His parents, on my assessment, are not particularly aged being in their 60’s, and will be able to manage with appropriate assistance from the other two children, when required. His parents have been in this country since at least 1980, as the applicant was born here and he is currently 35 years of age.
The applicant also relies upon his anxiety at being incarcerated, together with the fact that he has a health issue which causes him concern, being deep vein thrombosis. He has medication that he must take, and in his affidavit of 16 July 2015, he states that police had confiscated his medication which regulated his blood-clot condition. The evidence in respect to this, from the informant, is that he was provided with the medication and they have nothing to indicate that he is not being provided with this medication, as at this time. I have received no updated information from the applicant’s counsel to say that he is being denied any medication or appropriate care, so do not act upon the basis that he is being denied proper medical treatment. Justice Health are in a position to provide virtually any treatment that is required and I would see no reason why they would be depriving him of any requisite medication.
Equally, I have no doubt it is stressful for him to be incarcerated for the first time, it is stressful for everyone, and equally unpleasant.
The factors to which I have referred whilst being relevant factors to an application for bail, do not in my view amount either alone or in combination to exceptional circumstances in a case where the evidence, circumstantial as it is, is strong as to the accused being the perpetrator of the murder of the deceased.
As indicated, at a later stage it may be clearer as to whether or not there is some real issue as to self-defence or intent or similar, but, at this stage, on the material supplied to the court, it appears to be a strong case that has been put forward against the applicant, and the reasons for the court to grant bail not sufficient to amount to exceptional circumstances.
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