Director of Public Prosecutions v Pantic (Discharge of Jury)

[2017] VSC 446

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0030  

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

MICHAEL PANTIC

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JUDGE:	Macaulay J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 – 4 August 2017
DATE OF RULING:	4 August 2017
CASE MAY BE CITED AS:	DPP v Pantic (Discharge of Jury)
MEDIUM NEUTRAL CITATION:	[2017] VSC 446	First revision: 9 August 2017, catchwords

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CRIMINAL TRIAL – Close of prosecution case – Judge accedes to Crown submission that the accused has no case to answer – Jury discharged – entry of not guilty on all charges on the indictment directed pursuant to s 241(2)(b) of the Criminal Procedure Act 2009 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Hassan	Office of Public Prosecutions
For the Accused	Mr M Thomas	Fayman Lawyers

HIS HONOUR:

1. Mr Michael Pantic has been arraigned before a jury on three charges: attempted murder, alternatively intentionally causing serious injury, alternatively recklessly causing serious injury.

1. The Crown case has been opened and two witnesses have been called: the victim, Zack McKenzie, and a person accompanying him when he was shot, William Piper.  Certain exhibits have been tendered: jury books and photographs, a CCTV disc displaying an incident which occurred a week before the shooting, and some Facebook pages.

1. The Crown case was estimated to take up to 10 to 15 days with a dozen or so witnesses to be called.  So far we’ve heard from only two, albeit that they are two central witnesses in the Crown case, and evidence has only been going a little over two days.

1. The most critical issue in the case is the defence of self-defence by Mr Pantic.  There is no issue that he fired the shot that struck Zack McKenzie, the victim.

1. I am informed by the Crown that on the basis of statements obtained and the evidence at the committal,  prior to the trial it was assessed that the prosecution case had sufficient merit for it to proceed.  However, after hearing the evidence of Zack McKenzie and Will Piper and their cross examination and admissions they made, which include admissions about involvement in the incident about a week earlier and about a plan that they had on the night in question, the Crown no longer considers that it can establish beyond reasonable doubt that Mr Pantic was not acting in self-defence when he fired the shot.

1. The evidence of those two witnesses has also caused the Crown to consider that the further evidence it was going to call from other witnesses is likely to be unreliable.

1. In those circumstances the Crown has closed its case now.  That is it calls no more evidence.  It also itself submits there is no case for the accused to answer because on the evidence as it stands the evidence could not sustain a conviction of guilt on any of the three charges.  That is because, the Crown has submitted, on the evidence so far it has not and could not disprove beyond reasonable doubt that Mr Pantic was acting in self-defence.

1. It also submits that the evidence so far does not establish a serious injury given that there has been no medical evidence.

1. I am satisfied that as the evidence stands, it could not sustain a finding of guilt beyond reasonable doubt.  That is, on the evidence as it stands, it is my assessment that no reasonable jury could fail to have a reasonable doubt as to whether Mr Pantic was acting in self-defence when he fired the shot.

1. I therefore uphold the submission there is no case to answer on each of the three charges as disproving self-defence is an element of each of them. 

1. Under s 241(2)(b) of the Criminal Procedure Act 2009 (Vic) the law states:

(2) If –

…

b)at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment –

the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge.

1. Because the Crown has closed its case and because I decide there is no case for the accused to answer in respect of the three charges, pursuant to the Act I therefore discharge the jury from delivering a verdict on each charge and I direct that an entry of not guilty be made on the record in respect of each charge.