R v Xypolitos - [2013] VSC 514

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0015

THE QUEEN

JOHN XYPOLITOS

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JUDGE:	Curtain J
WHERE HELD:	Melbourne
DATES OF HEARING:	5, 6 and 7 August 2013
DATE OF RULING:	27 September 2013
CASE MAY BE CITED AS:	R v Xypolitos
MEDIUM NEUTRAL CITATION:	[2013] VSC 514

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EVIDENCE – Hearsay evidence – Admissibility pursuant to ss 65 and 66A Evidence Act 2008 (Vic) – Admissibility of the record of interview – Whether questions improper given accused’s ‘no comment’ answers.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A Tinney SC with Ms G Coghlan	Office of Public Prosecutions
For the Accused	Mr A Trood	Pica Criminal Lawyers

HER HONOUR:

John Xypolitos is charged with the murder of Gary Greg Adams on 5 December 2003. In a covertly taped conversation with an undercover operative on 12 April 2012, the accused admitted that he killed Gary Adams. The issue at trial is whether, when he did so, he had the required murderous intent and whether the Crown can exclude self-defence beyond reasonable doubt.

Mr Tinney SC, who appears together with Ms Coghlan on behalf of the Crown, have given notice of ten representations made by Gary Adams which it seeks to have admitted into evidence as exceptions to the hearsay rule. Mr Trood, who appears on behalf of Mr Xypolitos, did not oppose the admissibility of representation numbers 3 and 7. Indeed, they are admissible pursuant to s 66A[1] of the Evidence Act2008 (Vic)[2] as evidence of the deceased’s intention and state of mind.
[1]66A Exception—contemporaneous statements about a person's health etc.s. 66A
The hearsay rule does not apply to evidence of a previous representation made by a person if the representation was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind.
[2] Hereafter referred to as ‘the Act’.

The accused, at the relevant time, was in a relationship with the deceased’s mother, Jo-Ann Adams. They commenced their relationship in 1998 and commenced living together in 1999. In 2005, Gary Greg Adams was 17 and had been living with his mother and the accused on and off for approximately 3½ years. The Crown seeks to rely upon these representations to establish the nature of the relationship between the accused and the deceased; that is, that there was some disharmony between stepfather and stepson and that there had been occasions when violence had been inflicted on the deceased by the accused. There will be other evidence before the jury that will point to various aspects of conflict between the accused and the deceased, but the Crown rely upon these representations in particular, because they were made by the deceased. The evidence of relationship, it was submitted, placed in context the accused’s assertion that on 5 December 2003, he lacked the requisite intent and/or acted in self-defence. Mr Tinney SC submitted that this evidence would allow the jury to assess those events in a more…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Xypolitos

Details

AGLC: R v Xypolitos [2013] VSC 514
Case: [2013] VSC 514
Decision Date: 27 September 2013

CaseChat Overview and Summary

The case of R v Xypolitos involved the respondent, Xypolitos, who was charged with various offences, including murder, kidnapping, and extortion. The central issue in this case was the admissibility of certain police interview records under sections 65 and 66A of the Evidence Act 2008 (Vic). The crux of the dispute centred on whether the questions posed by the police during the interview were improper, considering the respondent's consistent 'no comment' responses. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the questions asked by the police during the interview were improper and whether the admissibility of the interview record should be excluded under section 66A of the Evidence Act. The court needed to determine if the questions posed by the police during the interview were appropriate given the respondent's refusal to answer and whether the evidence should be excluded due to any unfairness or prejudice caused by the questions. Additionally, the court had to consider the overall fairness of the trial and whether the admissibility of the evidence would unfairly prejudice the respondent.

The court examined the principles established in previous case law regarding the admissibility of police interview records. It concluded that the questions posed by the police were not improper, as they were relevant to the investigation and did not unduly influence the respondent's decision to remain silent. The court found that the questions were fair and did not prejudice the respondent. Consequently, the evidence was deemed admissible under section 65 of the Evidence Act, and the court held that there was no basis to exclude the evidence under section 66A.

The Supreme Court of Victoria ruled that the interview record was admissible and could be used as evidence in the trial. The court found that the questions posed by the police during the interview were appropriate and did not unfairly prejudice the respondent. The evidence was therefore deemed to be admissible, and the trial proceeded with the interview record being considered as part of the evidence against the respondent.

Orders