R v Andrakakos; DPP v Arkan; DPP v Andrakakos [2003] VSCA 170

R v Andrakakos; DPP v Arkan; DPP v Andrakakos [2003] VSCA 170 - VSCA 2003 case summary — Zoe

[15]

One must say immediately that what Nettle, J. chose to do was entirely admirable and followed the precepts, often repeated over the years, that a judge's charge to the jury should be tailored to the circumstances of and the issues raised by the case before the Court, so that the only issue here can be whether the judge succeeded in doing what he set out to achieve. The principle, taken from the civil jury appeal in Alford v. Magee[3] was recently referred to by both Charles, J.A. and myself in R. v. De'Zilwa[4], when it was noted that it had been approved as applicable to criminal jury trials on at least six occasions in the preceding ten years by members of the High Court.[5] What is required must depend on the circumstances of each case. Of course the essential elements of the accused's case must be stated to the jury in one way or another but it does not follow that a mere point by point repetition of counsel's address is always or necessarily the appropriate way to go about that. If the accused gives evidence and calls witnesses, ordinarily there ought to be a summary of what that evidence is, but it may be preferable to summarise such evidence by way of repeating the relevant essential points as answers to each part of the Crown case as it is separately summarised. Where no evidence is given or called by the accused, and the only evidential material in his or her favour appears from the record of interview, much discretion will lie in the trial judge as to how that is put to the jury. Sometimes much of that evidence is incoherent and conflicting so that it will not serve the accused's interests to have that repeated verbatim or even in summary form. At other times what appears from the record of interview, though self-serving, may amount to a completely different account of events, about which the jury should be reminded in some way or another.[6] Again, although a general summary of what the accused contends through their counsel can suffice, a fair exposition of how it is contended that each disputed element of the Crown case has not been established may be preferable.[7]

[20]

For this purpose the judge dealt with three aspects of the evidence, but in what he described as the "reverse order". He began with the injuries inflicted on Mr Herman, doubtless because for the most part they were not controversial and because the critical issues in that respect were who inflicted those injuries and whether Andrakakos was aware for relevant purposes that Arkan was inflicting most of those injuries. So the judge next moved to summarise the Crown case in support of its contention that those injuries were in fact inflicted by one or other of the two accused. This in essence required a summary of Andrakakos's relevant admissions. At this stage the judge also summarised the factual contentions made by counsel on his behalf, such as his answer that the bruising on the deceased's back might be accounted for by the fall of an old man to the floor. Next his Honour pointed out that there was a dispute as to when particular blows were struck and in particular whether and to what extent Andrakakos himself had kicked Mr Herman in the stomach, but which he had said was merely a tap because no more was needed for a man of that age. Further, the learned judge dealt with some care with the extent to which Andrakakos knew of the injuries being inflicted by Arkan and comments said to have been made to her that she was "nuts to do such a thing over a Visa card" and his desire to get out of the place. The judge here emphasised counsel's submission on behalf of the applicant that the use of the knife by Arkan was done entirely on her own initiative and that his client had always denied that he was involved with its use or that he had ever handled the knife, despite some apparent cuts to one of his hands. Then again, as to the injuries to the victim caused by the fire, the judge emphasised that Andrakakos had denied all along any knowledge of how the house caught on fire. Throughout his Honour consistently repeated his requirement to the jury that it must be satisfied of each of the Crown allegations beyond reasonable doubt.

[21]

The final aspect of the factual evidence summarised by the learned judge related to that evidence which went to Andrakakos's and Arkan's common purpose and otherwise to Andrakakos's complicity in the murder of the victim. Here in fact the judge commenced that description by emphasising counsel's forceful submissions that their only arrangement or understanding had been that they should go to the victim's house to commit a robbery, that they would break and enter and steal but they would not use any violence. The judge therefore referred to those parts of what Andrakakos had said in his record of interview which counsel had contended were consistent with the view that he had not entered into any agreement about the use of violence. Various answers were repeated as to his lack of intention, according to the interview, to harm the old man, who he had said had offered no resistance. Moreover, his Honour emphasised that the applicant had said that he did not think that Arkan would do anything like what she had in fact ultimately done to Mr Herman. His Honour thereafter turned to aspects of the Crown case on this subject but again, within a short time, he reiterated defence counsel's argument that an agreement to tie up a man and blindfold him fell along way short of an agreement to inflict the kinds of injuries ultimately suffered by Mr Herman. The judge then dealt with certain parts of the Crown case in which the prosecution had asked the jury to draw an inference, but the judge reiterated counsel's submission that there was no such evidence. Indeed each item was followed by a reminder to the jury how counsel had submitted that the particular inference suggested by the Crown should be rejected. In particular, when he dealt with the evidence of the applicant seeing Arkan using the knife to put out one of the victim's eyes and cutting off a portion of his penis, he repeated the applicant's evidence that he had felt sick and his comment to Arkan about doing such a thing over a Visa card. His Honour emphasised counsel's argument that it was no part of the applicant's duty to stop an unexpected attack on another person, if the jury could not be satisfied that those persons were acting in concert.

[37]

To my way of thinking this was again a very modest sentence but, notwithstanding the matters raised on behalf of the Director, it again did not fall outside the range of sentences appropriate for this kind of offending and this kind of offender having regard to the stringent tests imposed for Crown appeals against sentence. Both maximum and minimum terms are so far to the bottom of the appropriate range that it is only those restraints which have induced me to conclude that the appeal should be dismissed. However, whatever has been said in the past about the responsibility of those who aid and abet serious offences such as murder, there are factors in the present case which suggest that the judge was correct in fixing the chosen difference between those terms and the terms imposed on Arkan. If, as the judge implicitly held, no attack on the victim was planned beforehand so far as Andrakakos is concerned, then his complicity in her vicious treatment of Mr Herman must be seen as a spur of the moment reaction to the way in which Arkan chose to carry out this killing. Doubtless he tied up and blindfolded Mr Herman, but as I would understand it, that was largely to avoid his recognising Arkan. The questioning of the old man clearly got out of hand but, as the kind of violence inflicted by Arkan was not part of any plan embarked on by Andrakakos, he was left largely in the position of having either to go along with what he could see of Arkan's attack or to pull out completely. Clearly he was too weak and greedy to do the latter and thus he was responsible for the murder and so to be condemned and punished appropriately for that. His only direct blow was the kick, so that the rest of the attack, both by kicking and by using of the knife, was essentially a matter of acquiescence so far as he was concerned. It went on for far too long with his knowledge, but none of it was on his initiative and certainly the knife attack was partly, by the design of Arkan, hidden from him. The fact that he observed,

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Judgment (48 paragraphs)